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 25. HEALTH SERVICES PART I. Texas Department of Health CHAPTER 35.Pharmacy Services SUBCHAPTER F.Reimbursement 25 TAC sec.35.601, sec.35.611 On behalf of the State Medicaid Director, the Texas Department of Health (department) submits adoption of an amendment to sec.35.601, new sec.35.611, and repeal of sec.35.901 concerning reimbursement of Medicaid pharmacy providers for prescription services. Sections 35.601 and 35.611 are adopted with changes to the proposed text as published in the June 10, 1997, issue of the Texas Register (22 TexReg 5640). The repeal is adopted without changes, and therefore will not be republished. The amendment clarifies sec.35.601 by specifying the percentages that apply to the drug ingredient cost. The new sec.35.611 establishes a dispensing fee reimbursement formula for pharmacy providers participating in the Medicaid Vendor Drug Program which is based on an estimated dispensing expense, the drug acquisition cost for generic and brand name drugs, and an inventory management factor. The new sec.35.611 also establishes a maximum dispensing fee. The repeal of sec.35.901 eliminates the cost-based reimbursement methodology, which requires pharmacies participating in the Medicaid Vendor Drug Program to submit annual cost reports that provide detailed financial and statistical information on pharmacies' operations. Implementation of the amended, new and repealed sections is necessary in order for the department to administer the Medicaid Vendor Drug Program in an economical and efficient manner. The new section establishes a clear and understandable reimbursement methodology which is less administratively burdensome on participating providers. The adoption of sec.35.611 and the repeal of sec.35.901 published in the February 9, 1996, issue of the Texas Register (21 TexReg 957) were invalidated by an order issued by a state district court. The effect of the court's ruling was to require that the rules that were in effect prior to March 1, 1996, remain in force until the rules are lawfully repealed and a new rule is lawfully adopted. The administrative rules which were published in 21 TexReg 957 were subsequently published in the Title 25 of the Texas Administrative Code, Chapter 35. The rules, as published, do not reflect the facts concerning litigation of the rules and do not reflect the fact that the state district court order invalidating the rules superseded the Texas Board of Health's action of adopting the rules. The following comments were received concerning the proposed sections. Following each comment is the department's response and any resulting change(s). Comment: Several commenters requested clarification of sec.35.601 concerning instances in which an exception would be made to the 15% discount factor. Response: The department has changed the text of sec.36.601 to clarify that an exception to the 15% discount will be made only when the department has obtained information from the manufacturer. A discount factor other than 15% will be applied in very limited situations, and in accordance with departmental pricing practice which has been in place since 1986. These are usually specialty categories of drugs with alternative pricing structures such as narcotics and hemophilia-related products. These types of products either have inaccurate or unobtainable Average Wholesale Price (AWP) or wholesaler cost data. When the department obtains pricing information directly from the manufacturer that indicates that the 15% discount factor would not produce a routine discount, the department may compute a discount that may be greater than or lesser than the 15% discount factor in order to bring the pricing for an outlier product within normal ranges. Furthermore, it is not the department's intent to use the amended sec.35.601 to develop alternative discounts applicable to participating pharmacies which obtain unique contractual discounts either from a manufacturer or from an intermediary. It is the department's intention to address these special contract prices through a subsequent rule making. Comment: Regarding sec.35.601, several commenters disagreed with the use of the term "routine" as it applies to the 15% discount and requested that it be removed. Response: The department agrees. The term "routine" has been removed from sec.35.601. Comment: Concerning sec.35.611, several commenters noted that the dispensing fee formula had been revised and the factor that had formerly been in the denominator is proposed to be in the numerator. They have suggested that the factor be placed back in the denominator. Response: The department agrees and has changed the dispensing fee formula as suggested. Comment: Concerning sec.35.611, one commenter requested that the department publish the inflation factor which is to be applied to the dispensing expense 60 days in advance of its effective date. Response: The department disagrees and no changes were made as a result of this comment. However, the inflation factor is public information and will be made available upon request. Comment: Concerning the rules in general, a commenter stated that the department should establish incentives for generic substitution. Response: The department disagrees. This recommendation is inconsistent with current Texas law on substitution. The Medicaid Texas Maximum Allowable Cost policy, implemented in 1985, has resulted in the maximum use of generics. No changes were made as a result of this comment. Comment: Concerning the rules in general, several commenters suggested that significant savings could be generated by eliminating the three prescription and the six month supply limitation. Response: This comment is not relevant to this proposal. No changes were made as a result of this comment. Comment: Concerning the rules in general, several commenters stated that the proposal would have a substantial, negative financial impact on independent pharmacists for which Medicaid comprises a majority of their business, and questioned whether the department has performed any economic studies on this issue. Response: The department believes that the result of proposed methodology is reasonable and that the financial viability of the pharmacists will be maintained, as the average aggregate reduction resulting from these rules is approximately 4%. The department is unable to assess the actual economic impact on individual pharmacies as there are approximately 3,800 pharmacies which choose to participate in the Texas Medicaid Vendor Drug program on a voluntary basis across the state. The department believes that this rule is reasonable and necessary for the efficient administration of the Texas Medicaid program. No changes were made as a result of this comment. Comment: Concerning the rules in general, several commenters stated that the effect of the proposal would cause independent pharmacies to close and that access to these services would be seriously harmed. Response: The department believes that pharmacy providers will continue to remain viable because average reimbursement will be reduced approximately 4%. The department believes that the proposed change is reasonable for all providers. However, the department will be monitoring implementation of the rules in order to ensure that adequate access to pharmacy services is maintained. As a part of their contractual obligation, pharmacy providers are required to give the department 30 days notice before they may cease providing services. If the department finds that adequate access has not been maintained, the department will take further action to remedy the situation and to ensure adequate access to pharmacy services for Medicaid recipients. No changes were made as a result of this comment. Comment: Concerning the rules in general, a commenter stated that the department should allow for therapeutic substitution. Response: This comment is not relevant to the proposal. No changes were made as a result of this comment. Comment: Concerning the rules in general, a commenter stated that the department should allow for limitations on the formulary. Response: The department disagrees. The department places certain limitations on the formulary that are allowed by federal law. The department believes any additional limitations to the formulary that are allowed by federal law would be administratively cumbersome and would not be cost effective. No changes were made as a result of this comment. Comment: Concerning the repealed sec.35.901, several commenters stated that the department should continue collecting cost report information as the basis for determining dispensing fees. Also, commenters suggested that this could be done on a voluntary basis due to staff limitations. Response: The department disagrees. The elimination of the cost reporting requirements lessens the administrative and financial burden on both the department and the providers and would be inconsistent with the department's efforts to administer the Medicaid program in an economical and efficient manner. Additionally, a volunteer approach would likely attract those providers with exceptionally high cost. No changes were made as a result of this comment. Comment: Concerning the rules in general, a commenter stated that the department should allow for replacement of the current state rebate program with direct rebates for formulary placement. Response: This comment is not relevant to the proposal. The department's current rebate is administered under the authority of federal law (OBRA 1990 and 1993). Additionally, any limitations to the formulary could result in a loss of federal matching funds. No changes were made as a result of this comment. Comment: Concerning sec.35.601, several commenters wanted to know the department's justification for the proposed cost basis of the AWP minus 15%, and asked if the department knows how many pharmacies in Texas actually pay AWP minus 15% or better. Response: The department does not have a precise count of the number of pharmacies that purchase drug products from wholesalers at a pricing level of AWP minus 15%. However, recent state and federal invoice audits in Texas and eleven other states indicate that the average percentage discount from AWP received by community pharmacies exceeds 15%, and that the range of these discounts among these providers is between 14.63% and 20.19% off of AWP. No changes were made as a result of this comment. Comment: Concerning sec.35.601, several commenters stated that the department should consider that different types of pharmacies receive different levels of discounts. In particular, chain pharmacies receive larger discounts than small independent pharmacies and that the proposal ignores these different purchasing patterns. Response: The department disagrees. The department has been recognizing and paying reduced drug prices to chains since 1986. Under this policy, all purchases from central purchasing entities are paid at a "warehouse" price, which is less than the estimated acquisition cost reimbursed to independent pharmacies. No changes were made as a result of this comment. Comment: Concerning sec.35.611, one commenter which provides medications to chronically ill patients, stated that the proposed 2% inventory management factor would prohibit some pharmacies from stocking very expensive drugs. Response: The department disagrees. The 2% inventory management factor which is in the reimbursement formula was proposed to the department by pharmacy industry representatives through provider associations and represented as adequate to cover pharmacy costs, including costs for stocking and managing inventory. The department therefore believes that the 2% inventory management factor is reasonable and appropriate and is necessary for the efficient administration of the Texas Medicaid Program. No changes were made as a result of this comment. Comment: Concerning the rules in general, a commenter stated that the department should change its reimbursement policy for over-the-counter drugs and pay them in the same manner as other prescription drugs. Response: The proposal does not address this policy. No changes were made as a result of this comment. Comment: Concerning the rules in general, one commenter stated that the department should consider a higher rate of reimbursement for providers whose business is over 80% Medicaid because these pharmacies would be forced to close their doors as a result of the proposal. Response: The department disagrees. The department believes that the approximate 4% overall reduction is reasonable and the providers will remain economically viable. No changes were made as a result of this comment. Comment: Concerning the rules in general, one commenter stated that the drug Clozaril requires weekly prescriptions and the department should reimburse the provider each time Clozaril is dispensed. This is currently not permitted because of the restriction on the number of prescriptions per month. Response: The department disagrees because the prescription limit is not addressed in the proposal, but is addressed in a different rule. No changes were made as a result of this comment. Comment: Concerning the rules in general, several commenters stated that the department should recognize the uniqueness of their long-term care pharmacy operations. These are pharmacies which do not provide traditional retail service and whose only customers are residents of long-term care facilities. These operations provide 100% delivery, special packaging, 24-hour pharmacist availability, some of which are mandated by Texas Department of Human Services nursing home requirements. They also indicate that they have exceptional clerical cost as a result of participating in the Medicaid Vendor Drug program. Due to these factors they believe they should receive an additional $3.16 reimbursement per prescription, or a total of $8.43 ($5.27 + $3.16) per prescription. Response: The department recognizes that these operations may entail costs which may be higher than traditional retail pharmacies, though some costs may also be lower. Implementation of the proposal will eliminate cost based reimbursement. The Texas Medicaid Vendor Drug Program does not require these additional services and views these pharmacies' willingness to provide enhanced services as a voluntary effort to maintain a market share of business. Some of these costs are also more appropriately reflected in the Texas Department of Human Services nursing home reimbursement rate. No changes were made as a result of this comment. Comment: Concerning the rules in general, one commenter stated that the department should look carefully at the extent to which the department should benefit from any purchasing efficiencies that a provider is able to obtain. In particular, if the department intends to extract the full value of a provider's purchasing efficiency, then it will destroy the incentive for the provider to achieve maximum efficiency. Response: This issue is not relevant to this proposal. The department must administer the Medicaid program in an economic and efficient manner. No changes were made as a result of this comment. Comment: Concerning the rules in general, several commenters stated that the department does not provide any reason to implement the proposal other than House Concurrent Resolution (HCR) 215. Response: The department disagrees. HCR 215 is not the basis for the proposal, although the proposal is consistent with the provisions of HCR 215. Also, the purview of HCR 215 is far broader than the scope of the proposal. The department is required to administer the Medicaid program in an economic and efficient manner. The department has statutory authority to establish provider reimbursement rates as set out in Human Resource Code Chapter 32. In establishing provider reimbursement rates, the department must do so in accordance with the budget allocated for the department and for the program. No changes were made as a result of this comment. Comment: Concerning the rules in general, several commenters stated that the department's employment of the median approach in establishing the dispensing expense is inappropriate since it automatically eliminates all rate outliers and virtually eliminates any opportunity for profit. They suggest using a mean (average) approach and restoring the 7% profit factor. Response: The department disagrees. The department believes the proposed $5.27 dispensing expense is reasonable and appropriate. Additionally, employing a mean (average) approach inappropriately provides an incentive for pharmacies to be reimbursed for excessive costs. Use of a mean (average) approach provides a disincentive for providers to operate in an efficient manner. No changes were made as a result of this comment. Comment: Concerning the rules in general, several commenters stated that by not granting Public Health Service providers special dispensation for their unique types of products and services, the state would ultimately end up spending more for these products. Response: The department is currently collecting data on this issue and is considering changes which would address this issue. No changes were made as a result of this comment. Comment: Concerning the rules in general, a commenter stated that the proposal would not allow pharmacy/home health providers to cover their cost of operations. This provider offers home infusion therapies and a wide range of services available to chronically ill clients in a home, ambulatory or other subacute care setting. Response: The department disagrees. The department believes the proposal is reasonable and appropriate. The department will continue to monitor this situation. Additionally, this provider may be eligible to receive payment for services provided under the Title XIX Home Health program, the Comprehensive Care Program, or the Hyperalimentaion program, which would appear appropriate given the description of services. No changes were made as a result of this comment. Comment: Concerning sec.35.611, a commenter stated that pharmacists practicing in a variety of organized health care setting (hospitals, home health agencies, managed care organizations) have exceptional cost structures. In particular, because they often provide very high cost drugs in a home or ambulatory setting, the 2% inventory management factor and the $200 dispensing expense cap would result in significant economic loss. Response: The department disagrees. The department will continue to monitor this situation. No changes were made as a result of this comment. The commenters included Senator Judith Zaffirini, the Texas Pharmacy Association, the Texas Retailers' Association, Legend Pharmacies Southwest, the Texas Coalition of Long-Term Care Pharmacies, the Texas Society of Health-System Pharmacists, Public Heath Service providers supplying hemophilia related products, and individual providers. Several commenters offered suggestions for clarification. Most commenters spoke against the proposal indicating that either the current methodology should be maintained, or that some other mechanism should be employed that would increase reimbursement. The proposed amendment and new section are proposed under the Human Resources Code sec.32.021, and Government Code sec.531.021, which provides the Health and Human Services Commission with the authority to adopt rules to administer the state's medical assistance program and are submitted by the Texas Department of Health under its agreement with the Health and Human Services Commission to operate the purchased health services program, and as authorized under Chapter 15, sec.1.07, Acts of the 72nd Legislature, First Called Session (1991). sec.35.601. Legend and Nonlegend Medications. For all medication, legend and nonlegend, covered by the Vendor Drug Program and appearing in the Texas Drug Code Index (TDCI) and updates, the following requirements must be met. (1) Reimbursement to the pharmaceutical provider is based on the department's best estimate of acquisition cost (EAC), verifiable by invoice audit, plus the department's currently established dispensing fee per prescription, or the usual and customary price charged the general public, whichever is lower. (2) Estimated acquisition cost is defined as wholesale estimated acquisition cost (WEAC) or direct estimated acquisition cost (DEAC), according to the pharmacist's usual purchasing source and the pharmacist's usual purchasing quantity, or as a maximum allowable cost (MAC) for multi-source products. All drug purchases from a central purchasing entity must be billed to the department as warehouse purchases. The WEAC is established by the department using the current redbook, redbook update, First Databank, or manufacturer pricing less a discount of 15%, which represents discounts received by pharmacists on wholesale drug purchases. The WEAC may not exceed wholesaler cost, as supplied by the drug manufacturers, plus a 12% markup representing wholesaler operating costs and profits. Exceptions to the percentages may be made on certain drugs and/or drug categories where additional information supplied to the department by the manufacturer indicates that application of the specific WEAC percentages does not reflect customarily available prices. The DEAC is established by the department using direct price information supplied by drug manufacturers. Providers are reimbursed only at the DEAC on all drug products that are available from select manufacturers/distributors who actively seek and encourage direct purchasing. The TDCI is used as the reference from drugs included in the scope of benefits and for allowable package sizes. No acquisition cost is billed to the department for samples dispensed. (3) (No change.) sec.35.611.Dispensing Fee The Texas Department of Health (department) reimburses contracted Medicaid pharmacy providers according to the dispensing fee formula defined in this section. The dispensing fee is determined by the following formula: Dispensing Fee = (((Estimated Drug Ingredient Cost + Estimated Dispensing Expense) divided by (1 - Inventory Management Factor)) - Estimated Drug Ingredient Cost) + Delivery Fee, where; (1) The estimated drug ingredient costs are defined in sec.35.601 of this title (relating to Legend and Nonlegend Medication) and sec.35.605 of this title (relating to Texas Maximum Allowable Cost). (2) The estimated dispensing expense is $5.27 for state fiscal year 1997. This will be adjusted annually, subject to the availability of funds, to account for general inflation. (3) The inflation adjustment will be made, subject to the availability of funds, on the first day of the state fiscal year. The projected rate of inflation for the upcoming state fiscal year shall be based upon a forecast of the Implicit Price Deflator - Personal Consumption Expenditures produced by a nationally recognized forecasting firm. (4) The inventory management factor is 2%. (5) The total dispensing fee shall not exceed $200 per prescription. (6) A delivery fee shall be paid to approved providers offering no-charge prescription to all Medicaid recipients requesting delivery. The delivery fee is $.15 per prescription and is to be paid on all Medicaid prescriptions filled. This delivery fee is not to be paid for over-the-counter drugs which are prescribed as a benefit of this 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 29, 1997. TRD-9709812 Susan K. Steeg General Counsel Texas Department of Health Effective date: August 18, 1997 Proposal publication date: June 10, 1997 For further information, please call: (512) 458-7236 SUBCHAPTER I.Support Documents 25 TAC sec.35.901 The repeal is proposed under the Human Resources Code sec.32.021, and Government Code sec.531.021, which provides the Health and Human Services Commission with the authority to adopt rules to administer the state's medical assistance program and are submitted by the Texas Department of Health under its agreement with the Health and Human Services Commission to operate the purchased health services program, and as authorized under Chapter 15, sec.1.07, Acts of the 72nd Legislature, First Called Session (1991). 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 29, 1997. TRD-9709811 Susan K. Steeg General Counsel Texas Department of Health Effective date: August 18, 1997 Proposal publication date: June 10, 1997 For further information, please call: (512) 458-7236 TITLE 40. SOCIAL SERVICES AND ASSISTANCE PART III. Texas Commission on Alcohol and Drug Abuse CHAPTER 144.Funding Requirements SUBCHAPTER A.Definitions 40 TAC sec.144.1, sec.144.11 The Texas Commission on Alcohol and Drug Abuse adopts the repeal of sec.144.1 and sec.144.11, concerning requirements for funded providers, without changes to the proposed text as published in the June 24, 1997, issue of the Texas Register (22 Tex Reg 6009). These sections are repealed to allow adoption of new funding rules, and the repeal will delete obsolete language. These sections describe applicability and define terms used in this chapter. No comments were received regarding adoption of the repeal. The repeals are adopted under the Texas Health and Safety Code, sec.461.012(15), which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules governing the functions of the commission, including rules that prescribe the policies and procedures followed by the commission in administering any commission programs. The code affected by the repealed sections is the Texas Health and Safety Code, Chapter 461. 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 30, 1997. TRD-9709825 Mark S. Smock Deputy for Finance Administration Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 349-6609 SUBCHAPTER A.Definitions 40 TAC sec.144.1, sec.144.11, sec.144.21 The Texas Commission on Alcohol and Drug Abuse adopts new sec.sec.144.1, 144.11, and 144.21, concerning requirements for service providers funded by the commission, with changes to the proposed text as published in the June 24, 1997, issue of the Texas Register (22 TexReg 6009). The new rules are adopted to replace existing rules for funded providers, which are being repealed. Reference to intervention services has been removed from sec.144.1. In sec.144.11 the term "organization" has been replaced with "provider". In sec.144.21 the definition for intervention service has been eliminated, and the following definitions have been modified: case management, counseling, counselor, crisis intervention, life skills training (which replaces coping skills training), provider, and staff. These sections establish the general provisions relating to this chapter, including the applicability of the rules, the variance process, and definitions. The commission received comments from the Association of Substance Abuse Service Providers of Texas, Christian Farms/Treehouse, Inc., and a number of individuals. Comment: Given the broad range of entities receiving funding, allowing variances makes practical sense. Response: The commission agrees with this comment. Comment: What happened to the definition of medical indigence? Is this requirement removed through the use of the new financial criteria requirements in sec.144.521? Response: Yes. The proposed wording does not specifically reference medical indigency, so the term is not defined. Comment: Having the language regarding relationship with chemical dependency counselor included in definition for client is opposed. Response: This wording is a revision of current language that alerts providers to the fact that a counselor has an obligation to refrain from non-professional relationships with clients for two years after the client leaves treatment. This language was added because so many complaints were related to inappropriate counselor-client relationships. It is generally recognized in the counseling professions that a counselor has a professional relationship with a client for two years. The definition remains as proposed. Comment: The definition of adult should say "under the age of 18". Response: The definition has been corrected. The repeals are adopted under the Texas Health and Safety Code, Title 6, Subtitle B, sec.461.012(15), which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules governing the functions of the commission, including rules that prescribe the policies and procedures followed by the commission in administering any commission programs. The code affected by the new rules is the Texas Health and Safety Code, Title 6, Subtitle B, Chapter 461. sec.144.1.Applicability. (a) This chapter applies to all prevention and treatment programs funded by the commission. (b) Where other laws apply, however, state agencies funded by the commission shall not be required to comply with comparable commission rules. sec.144.11.Variances. The commission's executive director may grant a temporary variance from a requirement in this chapter to a provider or a group of providers. To be eligible for a variance, the provider must show that an alternative method is used to meet the intent of the rule and the services are not significantly affected. All variances must be requested and approved in writing. sec.144.21.Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Abuse-Any act or failure to act which is done knowingly, recklessly or intentionally, including incitement to act, which caused or may have caused injury to a client. Injury may include, but is not limited to: physical injury, mental disorientation, or emotional harm, whether it is caused by physical action or verbal statement. Client abuse includes: any sexual activity between facility personnel and a client; corporal punishment; nutritional or sleep deprivation; efforts to cause fear; the use of any form of communication to threaten, curse, shame, or degrade a client; restraint that does not conform with these standards; coercive or restrictive actions taken in response to the client's request for discharge or refusal of medication or treatment that are illegal or not justified by the client's condition; and any other act or omission classified as abuse by the Texas Family Code, sec.261.001. Adolescent-An individual 13 through 17 years of age whose disabilities of minority have not been removed by marriage or judicial decree. Adult-An individual 18 years of age or older, or an individual under the age of 18 whose disabilities of minority have been removed by marriage or judicial decree. Approve-Authorize in writing. Assessment (treatment)-The process used to gain sufficient information to identify, among other things, the participant's strengths, problems, and needs as they relate to the use/abuse of alcohol and/or other drugs and the risk of contracting or transmitting infectious diseases/sexually transmitted diseases. Case management-Services provided by an accountable staff person which include: (A) linking a client with needed services; (B) helping a client develop skills to use basic community resources and services; and (C) monitoring and coordinating the services received by a client. Chemical dependency-The abuse of, psychological or physical dependence on, or addiction to alcohol, a toxic inhalant, or any substance designated as a controlled substance in the Texas Controlled Substances Act. Child-An individual under the age of 13. Client-An individual who has been admitted to a substance abuse treatment facility licensed or funded by the commission and is currently receiving services. A licensed chemical dependency counselor providing chemical dependency services at a facility shall not have a non-professional relationship with any client receiving chemical dependency or related services from the facility for two years after the client is discharged. CODAP-Client-Oriented Data Acquisition Process. Commission-The Texas Commission on Alcohol and Drug Abuse. Consenter-The individual legally responsible for giving informed consent for a client. This may be the client, parent, guardian, or conservator. Unless otherwise provided by law, a legally competent adult is his or her own consenter. Consenters include adult clients, clients 16 or 17 years of age, and clients under 16 years of age admitting themselves for substance abuse counseling under the provisions of the Family Code, sec.32.004. Counseling-Assisting an individual or group to develop an understanding of problems, define goals, and plan action reflecting the individual's or group's interest, abilities, and needs as affected by chemical dependency problems. Counseling session-A scheduled meeting of 30 minutes or longer duration where group, individual, or family counseling is provided. Counselor-A qualified credentialed counselor or a counselor intern working under direct supervision. Counselor intern (CI)-A person pursuing a course of training in chemical dependency counseling at a regionally accredited institution of higher education or an approved clinical training institution who has been designated as a counselor intern by the institution. The activities of a counselor intern shall be performed under the direct supervision of a qualified credentialed counselor (QCC). Crisis intervention-Services designed to intervene in situations which may or may not involve alcohol and drug abuse, and which may result in a crisis if immediate attention is not provided. Services include face-to-face individual, family, or group interviews and/or telephone contacts to identify the participant's family's needs. Cultural awareness and sensitivity training-Training to improve an individual's ability to understand and interact with persons of a different culture. Culture defines the lifestyle of a distinct population and includes values, behavioral norms, and patterns of interpersonal relationships. It may be based on race, ethnicity, religion, age, gender, sexual orientation, or disability. Documentation-A written record that includes a date and signature and provides authenticated evidence to substantiate compliance with standards, such as minutes of meetings, memoranda, schedules, notices, logs, records, policies, procedures, and announcements. DSM-IV-The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition-Revised, published by the American Psychiatric Association. Ensure-To take all reasonable and necessary steps to achieve results. Evaluation program- Written assessment activities, performed internally or externally, of a program or a service and its staff, activities, and planning process to determine whether program or service goals are met, staff and activities are efficient and effective, and whether or not a program or service has any effect on the problem which it was created to address and/or on the population which it was created to serve. Exploitation-An act or process to use, either directly or indirectly, the labor or resources of a client for monetary or personal benefit, profit, or gain of another individual or organization. Family-The parents, brothers, sisters, other relatives, foster parents, guardians, or significant others who perform the roles and functions of family members in the lives of clients/participants. Financial assistance-A payment mechanism where payment is made based on an approved line item budget. HIV-Human Immunodeficiency Virus. Intervention counseling-The process of assisting individuals, families, and groups to identify, understand, and resolve issues and problems related to substance abuse in order to intervene in problem situations and high risk behaviors associated with substance abuse which, if not addressed, may escalate to substance abuse or severe impairment. Life skills training-A formalized program of training, based upon a written program description, to assist the client in acquiring personal habits, attitudes, values, and social interaction skills that will enable the client to function effectively and/or become gainfully employed. It includes instruction in communication, stress management, problem solving, daily living, and decision making. Neglect-Actions resulting from inattention, disregard, carelessness, ignoring, or omission of reasonable consideration that caused, or might have caused, physical or emotional injury to a client. Examples of neglect include, but are not limited to, failure to provide adequate nutrition, clothing, or health care; failure to provide a safe environment free from abuse; failure to maintain adequate numbers of appropriately trained staff; failure to establish or carry out an appropriate individualized treatment plan; and any other act or omission classified as neglect by the Texas Family Code, sec.261.001. Offer-To make available. OMB-Office of Management and Budget. Outcome-The impact on the system or client/participant served. Prevention-A proactive, inclusive process which seeks the strengthening and empowerment of individuals, families, and communities to create conditions that promote health and well-being by enhancing resiliency and protective factors. Program-A system of service delivery consisting of a specific type of service delivered to a specific population as identified in the proposal. Protective factors-Those characteristics within social systems, such as family, schools, peer groups, that foster resiliency and include high expectations, caring and support, and the opportunity to be involved. Provide-To perform or deliver. Provider-A distinct legal entity with an administrative and functional structure organized to deliver substance abuse services. Qualified credentialed counselor (QCC)- A licensed chemical dependency counselor or one of the professionals listed below who can demonstrate two years of chemical dependency counseling experience or one year of chemical dependency counseling experience and 90 clock hours (six semester hours) of chemical dependency training including the 12 core functions from an accredited college or university or an education provider approved by the commission. Documentation shall be available upon request. The following professionals are eligible to serve as QCCs: (A) licensed professional counselor (LPC); (B) licensed master social worker (LMSW); (C) licensed marriage and family therapist (LMFT); (D) licensed psychologist; (E) licensed physician; (F) certified addictions registered nurse (CARN); (G) licensed psychological associate; and (H) advance practice nurse recognized by the Board of Nurse Examiners as a clinical nurse specialist or nurse practitioner with a specialty in psyche- mental health (APN-P/MH). Staff-Individuals hired directly by a provider to provide services for the provider in exchange for money or other compensation. STDs-Sexually transmitted diseases. Substance abuse- The use of one or more drugs, including alcohol, which significantly and negatively impacts one or more major areas of life functioning. TAC- Texas Administrative Code. Treatment (chemical dependency)- A planned, structured, and organized program designed to initiate and promote a person's chemical-free status or to maintain the person free of illegal drugs. Unit cost-A payment mechanism in which a specified rate of payment is made in exchange for a specified unit of 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 July 30, 1997. TRD-9709831 Mark S. Smock Deputy for Finance Administration Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 349-6609 SUBCHAPTER B.Organizational 40 TAC sec.sec.144.21-144.29, 144.31-144.34, 144.41-144.44, 144.51-144.54, 144.61-144.65, 144.71-144.74 The Texas Commission on Alcohol and Drug Abuse adopts the repeal sec.sec.144.21- 144.29, 144.31-144.34, 144.41-144.44, 144.51-144.54, 144.61-144.65, and 144.71- 144.74, concerning organizational requirements for funded providers, without changes to the proposed text as published in the June 24, 1997 issue of the Texas Register (22 Tex Reg 6011). These sections are repealed to allow adoption of new funding rules, and the repeal will delete obsolete language. These sections establish general standards and detail requirements regarding organizational chart, award acceptance, governing board, restrictions on the use of funds, funding requirements, tobacco legislative mandates, community support, linkages and written agreements, HIV workplace guidelines and training, HIV confidentiality guidelines, HIV record keeping systems, HIV counseling and education in treatment, amendments to the award, organizational and personnel changes, retention of records, confidentiality of records, requirements for subcontracting, use of the commission logo and slogan, complaints, central file, conflict of interest, non-collusion, remuneration, franchise taxes, oral and written agreements, target population, receipt of goods and services, publications and products produced, and limiting barriers. No comments were received regarding adoption of the repeal. The repeals are adopted under the Texas Health and Safety Code, sec.461.012(15), which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules governing the functions of the commission, including rules that prescribe the policies and procedures followed by the commission in administering any commission programs. The code affected by the repealed sections is the Texas Health and Safety Code, Chapter 461. 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 30, 1997. TRD-9709826 Mark S. Smock Deputy for Finance Administration Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 349-6609 SUBCHAPTER B.Contract Administration 40 TAC sec.sec.144.101-144.107, 144.121-144.124, 144.131-144.133, 144.141, 144.142 The Texas Commission on Alcohol and Drug Abuse adopts new sec.sec.144.101- 144.107, 144.121-144.124, 144.131-144.133, 144.141, and 144.142, concerning contract administration for service providers funded by the commission, with changes to the proposed text as published in the June 24, 1997, issue of the Texas Register (22 TexReg 6012). The new rules are adopted to replace existing rules for funded providers, which are being repealed. This subchapter has been retitled. Throughout the text, the term "organization" has been replaced with the term "provider". Section 144.121 has been revised to include reference to the Code of Federal Regulations as well as Office of Management and Budget circulars and to delete redundant references. Section 144.124 has been revised to reflect proposed changes in the Uniform Grant and Contract Management Standards regarding indirect cost. In sec.144.131 and sec.144.132, the threshold for equipment has been lowered from $5,000 to $1,000. These rules describe procedures for award acceptance, amendments, and organizational and personnel changes. They also describe the matching requirement for prevention awards, the order of legal precedence, payment requests, reporting requirements, application of the Office of Management and Budget Circulars, and restrictions on double billing. In addition, the proposal includes requirements related to indirect costs, expenditures requiring prior approval, equipment and supplies, travel, procurement, and subcontracting. The commission received comments from the Association of Substance Abuse Service Providers of Texas, Christian Farms/Treehouse, Inc., and a number of individuals. Comment: The changes in timelines makes the contracting process more feasible and realistic. Response: The commission agrees with this comment. Comment: TCADA supports the current version of sec.141.101(b) which adds "or the date the provider is notified by the Commission, whichever is later". It is believed that TCADA, as a regulatory agency, should have a responsibility to monitor and inform contractors of state and federal changes that effect their contracts with TCADA. Response: The commission agrees that it has the responsibility to monitor and inform contractors of state and federal changes that affect their contracts with TCADA. This language was removed because we do not have the authority to change the date a statute or regulation takes effect. Comment: The clarification of the required purchasing procedures is appreciated. Response: The commission has tried to make the rules easier to understand. The new sections are proposed under the Texas Health and Safety Code, Title 6, Subtitle B, sec.461.012(15), which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules governing the functions of the commission, including rules that prescribe the policies and procedures followed by the commission in administering any commission programs. The code affected by the proposed rules is the Texas Health and Safety Code, Title 6, Subtitle B, Chapter 461. sec.144.101.Contract Acceptance. (a) To execute a contract, the provider shall submit an original acceptance notice signed by the chief executive officer, chief financial officer, and board chair within 45 calendar days of the contract's postmark date. A copy of the board minutes documenting board acceptance of the terms and conditions of the contract shall be submitted within 90 calendar days of the postmark date. (b) Changes in state or federal laws and regulations may affect contract provisions. Any modifications resulting from such changes are automatically made part of the contract and go into effect on the date set by the law or regulation. (c) The provider shall have insurance or other provisions to ensure that assets purchased with commission funds will be replaced if lost, destroyed, damaged, or stolen. (d) The provider shall maintain employee bonding for the executive director and the chief financial officer. sec.144.102.Amendments. (a) To amend the terms and conditions of the contract, the provider shall submit a written request to the commission. (b) No amendment is valid unless it has been approved in writing by the commission. (c) A provider may not implement changes that substantially affect the funded program in the following areas without written approval from the commission: (1) the catchment area designated in the contract; (2) scope or objectives of the program, including the program design, target population, or approved services/activities; or (3) items of cost that require prior approval (see sec.144.131 of this title (relating to Expenditures Requiring Prior Approval)). sec.144.103. Organizational and Personnel Changes. The provider shall notify the commission in writing within ten business days of: (1) changes in the provider's legal name, address, telephone number, or legal status; and (2) changes in the following personnel: (A) certifying representative; (B) board chair; (C) executive director; (D) financial officer; (E) project director; (F) contact person; and (G) any other individuals identified as key personnel in the application. sec.144.104.Matching Prevention Awards. (a) Unless waived in writing by the commission, all providers funded to provide prevention services shall contribute 5.0% of the award amount expended in matching funds. (b) Match shall comply with requirements found in the applicable Office of Management and Budget (OMB) circulars (as stated in sec.144.121 of this title (relating to Application of (OMB) Circulars)). sec.144.105. Legal Precedence. Providers shall follow this order of legal precedence: (1) federal and state laws (including, but not limited to the federal block grant found at United States Code, Title 42, sec.300x); (2) rules adopted by the commission and applicable federal regulations; (3) terms and conditions of the contract; (4) the request for proposals; and (5) the application. sec.144.106.Payment Request. (a) Payments shall be made only when the contract has been fully executed. (b) To be eligible for payments, the provider must comply with provisions of the contract, rules, policies, and procedures of the commission, and other applicable state and federal laws and regulations. (c) The commission may withhold payment if the provider is not in compliance with commission requirements, which include: (1) rules adopted by the commission; and (2) terms and conditions in the contract. (d) The commission shall not reimburse treatment services provided at an unlicensed site if the site is required to have a license. (e) Providers paid through the financial assistance payment mechanism who want to receive monthly cash advances must submit the completed method of payment selection form to the commission. (f) Payment may only be requested one month in advance. (g) If a request for advance payment exceeds the limit established by the commission, the provider must submit documentation that justifies the need for additional funds. (h) The provider shall minimize the time between disbursement of funds by the commission and expenditure of funds by the program. The commission may reduce or reject payment if the Financial Status Report or other documentation shows the program has commission funds on hand. (i) Reimbursements must be requested at least quarterly. Final payment must be requested within 90 days after the end of the budget period. (j) Payment requests shall be accurate and submitted in the format required by the commission, and certified by the provider's authorized representative (specified in the contract). sec.144.107.Reporting. (a) The provider shall submit all reports as required by commission rules, the contract, and applicable instruction manuals. Reports shall be submitted in the specified form, manner, and timeframe. (b) The provider shall submit all performance reports, financial reports, and requests for payment through the designated electronic interface system. When equipment problems prevent electronic submission, the provider shall fax or mail paper copies to the commission. The provider's authorized official or designee specified in the Electronic Forms Signature Agreement is responsible for the completeness and accuracy of the data. (c) The provider shall acquire and maintain the equipment and software needed for the electronic interface system. (d) The provider shall establish adequate internal controls, security, and oversight for the approval and transfer of complete and accurate information. sec.144.121. Application of OMB Circulars. (a) Expenditures and administration of commission and match funds shall follow guidelines for reasonableness, allowability, and administration according to the cost principles and administrative requirements for the appropriate organizational structure as specified below: (1) state and local governments or Indian Tribal governments shall comply with cost principles found in the Uniform Grant and Contract Management Standards; (2) not-for-profit providers shall comply with cost principles found in the Office of Management and Budget (OMB) Circular A-122 and administrative requirements found in the Office of Management and Budget Circulars Circular A- 110 (with changes incorporated as the Code of Federal Regulations, Title 45, Part 74); (3) educational organizations shall comply with cost principles found in OMB Circular A-21 and administrative requirements found in OMB Circular A-110; (with changes incorporated as the Code of Federal Regulations, Title 45, Part 74); (4) commercial organizations shall comply with cost principles found in Code of Federal Regulations, Title 48, Part 31, and administrative requirements found in OMB Circular A-110 (with changes incorporated as the Code of Federal Regulations, Title 45, Part 74); and (5) hospitals shall comply with cost principles found in the Code of Federal Regulations, Title 45, Part 74, and administrative requirements found in OMB Circular A-110. (b) All references in the circulars to "Federal" or "Federally" shall be expanded to read "Federal or State" or "Federally or State", as applicable. References to "recipient" shall be expanded to read "recipient, contractor, or subcontractor". (c) The provider shall also comply with requirements and restrictions found in the federal block grant, found at United States Code, Title 42, sec.300x. sec.144.122.Double Billing. A provider shall not bill and receive payment in excess of actual costs from more than one entity for the same service at the same time for the same client. The total amount paid to a provider shall not exceed the actual costs of providing the services, either by client or in the aggregate. If double billing generates revenue that exceeds actual costs, the revenue shall be treated as program income in accordance with sec.144.123 of this title (relating to Program Income). sec.144.123.Program Income. (a) Providers shall separately record and report all program income directly generated through the portion of a program or activity funded by the commission. (b) The program may charge reasonable fees for commission-funded services or activities provided: (1) the resulting income is used according to applicable regulations; and (2) an otherwise eligible applicant is not refused commission-funded treatment for inability to pay. sec.144.124.Indirect Cost. (a) In order to charge indirect costs, a provider must submit: (1) an indirect cost rate approved by the provider's cognizant agency; (2) a cost allocation plan; or (3) notice that the provider will use an indirect cost rate of 10% as provided in the Uniform Grant and Contract Management Standards (UGCMS). The notice must include supporting documentatino to show the direct salary and wage costs of providing the service (excluding overtime, shift premiums, and fringe benefits). This option shall be available only if included in UGCMS. (b) If the provider uses a cost allocation plan, the plan shall be submitted with the budget plan for advance approval. (1) The plan shall include a detailed explanation and itemization of which costs are included as direct and which costs are allocated as indirect. (2) The plan shall set forth the formula or basis for distributing shared (indirect) costs to a cost center. (3) Supporting documentation for the plan shall include: (A) the basis upon which costs are allocated; (B) the rational for the basis selected; and (C) the relevance to the commission-funded program. sec.144.131. Expenditures Requiring Prior Approval. Prior approval is required for certain costs charged to the commission contract or reported as program income or match. Costs that are allowable only with prior approval from the commission include: (1) Equipment. Items used solely for the delivery of funded substance abuse services which have a unit price of $1,000 or more and a useful life of more than one year. (2) Remodeling. Work costing $5,000 or more which is required to change the interior arrangements or other physical characteristics of an existing facility, or to install equipment so that the facility may be used more effectively. (3) Contractual services. Contracting out, subgranting, or otherwise obtaining the services of a third party to perform activities which: (A) are central to the purposes of the contract; or (B) cost $5,000 or more. (4) Transfers. Any transfer among direct cost categories when year-to-date transfers exceed or are expected to exceed 10% of the total approved budget. (5) Other. Items requiring prior approval in accordance with the appropriate Office of Management and Budget (OMB) circular. sec.144.132. Equipment and Supplies. (a) Equipment includes all tangible personal property that costs $1,000 or more per unit and has a useful life of more than one year. (b) Supplies include all materials and other expendable property includes property needed to carry out a contract that costs less than $1,000. (c) The provider shall conduct an annual physical inventory of all equipment purchased with commission funds. The inventory shall conform with standards found in the applicable Office of Management and Budget (OMB) circular. sec.144.133.Travel. (a) Expenses for transportation, lodging, meals, and related items are allowable when they are incurred by an employee or volunteer on official business which is directly attributable to the contract or required for administration of the provider. (b) Costs for lodging, meals, and related items may not exceed federal per diem guidelines. If the provider's policies and procedures establish a lower per diem rate, the lower rate shall apply. (c) Alcoholic beverages are not allowable travel costs. sec.144.141.Procurement. (a) The provider may use small purchase procurement procedures to obtain services, supplies, or other property costing no more than $25,000 in total. These rules do not apply to obtaining the services of a professional as defined in Texas Government Code, Chapter 2254. (1) For any purchase under $1,000, price or rate quotations are not required. (2) The provider shall obtain three verbal or written price or rate quotations for any purchase between $1,000 and $5,000. Telephone and other verbal quotations must be documented. (3) The provider shall obtain three written price or rate quotations for any purchase over $5,000. (b) The provider shall select the vendor providing the best value and document the rational for selection. (c) Purchases over $25,000 shall comply with requirements found in the applicable Office of Management and Budget (OMB) circular. sec.144.142.Subcontracting. (a) Providers shall not subcontract, assign, or transfer any activity central to the purposes of the contract without prior written approval from the commission. (b) The provider shall require any approved subcontractor to comply with all provisions of the commission's contract and with applicable laws and regulations. (c) The relationship between the provider and the subcontractor shall be formalized in a written agreement that is signed by the governing body or legally responsible party of both the provider and the subcontractor. (d) The provider shall retain sufficient rights and controls to fulfill its contract responsibilities to the commission. Subcontracting does not relieve the funded provider of any responsibility to the commission under the contract. (e) The provider is responsible for paying subcontractors and shall monitor activities to assure compliance with applicable requirements. (f) When a contract ends, the provider and each subcontractor shall settle all claims promptly, including those from employees, vendors, and other subcontractors. (g) When a subcontractor becomes insolvent or otherwise incapacitated, abandons the contract, or is discharged by the funded provider, the funded provider shall notify the commission in writing within three working days if the situation will affect the delivery of needed services. (h) Subcontractors must also comply with all applicable state and federal laws and regulations and commission requirements contained in the commission's rules. These specifically include the audit requirements of Office of Management and Budget (OMB) Circular A-133 if applicable, and all other OMB Circulars required in the sec.144.121 of this title (relating to Application of OMB Circulars). 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 30, 1997. TRD-9709832 Mark S. Smock Deputy for Finance Administration Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 349-6609 SUBCHAPTER C.Audits 40 TAC sec.sec.144.201, 144.202, 144.211-144.216 The Texas Commission on Alcohol and Drug Abuse adopts new sec.sec.144.201, 144.202, and 144.211-144.216, concerning audits of funded providers. Sections 144.201, 144.202, 144.211, 144.212, and 144.214-144.216 are adopted with changes to the proposed text as published in the June 24, 1997, issue of the Texas Register (22 TexReg 6015). Section 144.213 is adopted without changes and will not be republished. The new rules are adopted to replace existing rules for funded providers, which are being repealed. Throughout the text, the term "organization" has been replaced with the term "provider". Section 144.201 has been revised to delete reference to removing original records from the provider's location. These rules explain the commission's audit process and describe the requirements for obtaining an independent financial audit and submitting it to the commission for review. These rules are being proposed to establish methods for monitoring provider compliance. The commission received comments from the Association of Substance Abuse Service Providers of Texas, Christian Farms/Treehouse, Inc., the Serenity Foundation of Texas, and a number of individuals. Most of the comments related to a paragraph in sec.144.201 which stated that records must be made available for removal from the provider's site. Comment: Removing records from the property is in violation of the Code of Federal Regulations, Title 42, Part 2, and violates client confidentiality. Also, the provider is the legal custodian of the records, and must be able to produce original records for other audits if needed. Change language to state that "copies shall be made available for removal" or "Any documents which need to be removed will be taken as copies at the expense of the commission." Response: The commission has deleted language about removing original records from the premises because we are confident that providers will fully cooperate with requests to duplicate records needed for audit purposes. The confidentiality statutes and regulations do, however, give the commission explicit authority to remove client records from the program site. Code of Federal Regulations, Title 42, sec.2.53 states that records containing patient- identifying information may be copied or removed from program premises by any federal, state, or local governmental agency which provides financial assistance to the program or is authorized by law to regulate its activities. This section also has strict requirements that protect client confidentiality when records are copied or removed for audit or evaluation activities. Specifically, the information may be used only to carry out the audit or evaluation and may only be disclosed back to the program from which it was obtained. In addition, the agency must maintain the patient-identifying information in accordance with specified security requirements and destroy all patient-identifying information upon completion of the audit or evaluation. The commission takes its responsibility for protecting client information very seriously. Client-identifying information is never cited in an audit report or any other document subject to public examination, and internal procedures ensure that staff access is limited to those individuals directly involved with the audit. Comment: The commission needs to bear some responsibility to respond in a timely manner (30-60 days) to the organization who has corrected deficiencies. Non- profits do not have the reserves to survive past this time frame. Response: The commission accepts this responsibility and is committed to responding to providers in a timely manner. We believe that the internal agency procedures are a more appropriate vehicle for specifying time frames to be followed by Texas Commission on Alcohol and Drug Abuse staff. Comment: In the audit process, include a provision that will allow/encourage auditors to acknowledge strengths, uniqueness and value-added features of individual programs. Give auditors the flexibility to weigh with less exactitude to allow for creativity and thinking outside the box. Look at the program as a whole. Response: The nature of compliance generally is to note those areas that need some type of corrective action. Providers have asked for compliance reports to include positive aspects of the program, and the Compliance Branch will work toward this goal in the future. In general, however, the provider will receive feedback regarding strengths, unique characteristics, and value-added features from Program Services staff. While program compliance is charged with ensuring compliance with minimum standards, program services works with programs to achieve even higher levels of quality. The approach of the audit team on a full compliance visit is to look at the whole program (program, administrative, and fiscal) and to consider whether the intent of the rule has been complied with. The new sections are adopted under the Texas Health and Safety Code, Title 6, Subtitle B, sec.461.012(15), which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules governing the functions of the commission, including rules that prescribe the policies and procedures followed by the commission in administering any commission programs. The code affected by the new rules is the Texas Health and Safety Code, Title 6, Subtitle B, Chapter 461. sec.144.201.Compliance Review. (a) All commission-funded providers, regardless of the level of funding, are subject to periodic reviews by the commission for compliance with applicable federal, state and commission statutes and regulations and contract requirements. (b) The commission shall determine the extent of the review, which shall be limited to services funded by the commission. (c) The commission may conduct a scheduled or unannounced on-site inspection or request materials for review. (d) The applicant shall allow commission staff to access the facility's grounds, buildings, and records and to interview members of the governing body, staff, and clients. (e) The provider shall allow commission staff to examine all property and examine or copy all books, recordings, client records, and documents related to the contract or a commission requirement on or off the premises. sec.144.202.Organization Response. (a) The provider will be notified in writing of any noncompliance with federal, state, and commission regulation identified by the commission in the form of a draft audit. (b) The provider shall respond to the draft audit and the deficiencies (if any) and submit a plan of corrective action (if necessary) to the commission within 30 calendar days of the postmark date. (c) The corrective action plan shall include: (1) the title(s) of the person(s) responsible for the corrective action; (2) the corrective action planned; and (3) the anticipated completion date. (d) If the provider believes corrective action is not required for a noted deficiency, the response shall include an explanation and specific reasons. (e) The provider's replies and corrective action plan (if any) shall become part of the final audit report. (f) The provider shall correct deficiencies identified in the final audit report within a reasonable period of time. sec.144.211.Independent Financial Audit. (a) Providers (except for-profit entities) that expend a total amount of federal awards (from the commission and other funding sources) of at least $300,000 during their fiscal year must have a single audit or program-specific audit in accordance with the requirements of the Single Audit Act Amendments of 1996 and other governance guiding the program. (1) If the funds are expended under more than one federal program the provider shall have a Single Audit. (2) If the funds are expended under only one federal program and the provider is not subject to laws, regulations, or federal contracts that require a financial statement audit, the provider may elect to have a program-specific audit. (3) The provider shall comply with the single audit requirements of Office of Management and Budget (OMB) Circular A-133. (b) Providers shall inform the commission in the contract if they expect to spend $300,000 or more in total federal awards from all funding sources. (c) Providers (including for-profit entities) expending a total amount of state funds from the commission of at least $300,000 during their fiscal year must have a program-specific audit that meets the standards in OMB Circular A-133. If the provider is already required to have a single audit because of federal funding, an additional program audit is not required. (d) Providers that expend less than $300,000 in federal funds from all sources and less than $300,000 in state funds from the commission during their fiscal year are not required to have an audit. sec.144.212.Auditor Qualifications. (a) The audit shall be conducted by an independent certified public accountant (CPA). (b) The selected auditor must meet the requirements of the Government Auditing Standards (GAS) and be licensed in the state in which the audit is performed. (c) Providers who use outside CPA firms to perform bookkeeping or accounting services shall not use the same CPA firm for audit services. sec.144.214.Audit Submission. (a) The provider shall submit two copies of all required audit documentation to the commission, including: (1) the audit report; (2) any separately issued management letters; (3) management responses as required in sec.144.215 of this title (relating to Corrective Action Plan); and (4) the commission's Audit Report Submission Checklist. (b) Audit documentation must be submitted within 30 calendar days after completion of the audit, and the audit shall be completed no later than one year after the end of the provider's fiscal year-end. sec.144.215.Corrective Action Plan. (a) The provider shall prepare a response that includes a corrective action plan for each deficiency noted in the independent audit report and management letter. (b) Management responses shall express agreement or disagreement with the noted deficiencies. Disagreement shall include additional support, evidence, or justification of the provider's position. (c) The corrective action plan shall include: (1) the title(s) of the person(s) responsible for the corrective action; (2) the corrective action planned; and (3) the anticipated completion date. (d) If the provider believes corrective action is not required for a noted deficiency, the response shall include an explanation and specific reasons. sec.144.216.Commission Review of Audit Report. (a) After reviewing the audit, the commission will send the provider an initial resolution letter requesting a response to any administrative findings or deficiencies. (b) The provider shall respond to the commission within 14 calendar days of the postmark date. (c) If further action is required, additional resolution letters will request specific actions or responses. The provider must respond to these requests within the given timeframes. (d) When the review process indicates that no further action is needed, the commission will mail an acceptance letter to the provider. 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 30, 1997. TRD-9709833 Mark S. Smock Deputy for Finance Administration Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 349-6609 SUBCHAPTER C.Fiscal 40 TAC sec.sec.144.211-144.215, 144.221-144.227, 144.231-144.233, 144.235- 144.239, 144.241-144.245, 144.251-144.256, 144.261-144.265, 144.271, 144.281- 144.283 The Texas Commission on Alcohol and Drug Abuse adopts the repeal of sec.sec.144.211-144.215, 144.221-144.227, 144.231-144.233, 144.235-144.239, 144.241-144.245, 144.251-144.256, 144.261-144.265, 144.271, and 144.281-144.283, concerning fiscal requirements for funded providers, without changes to the proposed text as published in the June 24, 1997 issue of the Texas Register (22 TexReg 6017). These sections are repealed to allow adoption of new funding rules, and the repeal will delete obsolete language. These sections establish general principles and describe requirements for financial management, accounting systems, internal controls, budget controls, cost allocation plan, payments, methods of payment, cash management, matching, program income, revisions of grant awards, allowable cost criteria, direct costs, indirect costs, expenditures requiring commission's prior approval, unallowable costs, prohibitions against billing more than one entity, minor remodeling, major medical equipment, general documentation requirements, personnel documentation, travel documentation, other documentation, federal and state tax requirements, property standards, real property, equipment, supplies, intangible property, insurance coverage, procurement standards, methods of procurement, cost and price analysis, procurement records, subcontract administration and provisions, close-out procedures, termination for convenience, and refunds. No comments were received regarding adoption of the repeal. The repeals are adopted under the Texas Health and Safety Code, sec.461.012(15), which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules governing the functions of the commission, including rules that prescribe the policies and procedures followed by the commission in administering any commission programs. The code affected by the proposed new sections is the Texas Health and Safety Code, Chapter 461. 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 30, 1997. TRD-9709827 Mark S. Smock Deputy for Finance Administration Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 349-6609 SUBCHAPTER D.Prevention and Intervention 40 TAC sec.sec.144.301, 144.311-144.316, 144.321, 144.322, 144.333, 144.341- 144.346, 144.351, 144.352, 144.355, 144.356, 144.361 The Texas Commission on Alcohol and Drug Abuse adopts the repeal of sec.sec.144.301, 144.311-144.316, 144.321, 144.322, 144.333, 144.341-144.346, 144.351, 144.352, 144.355, 144.356, and 144.361, concerning requirements for funded prevention and intervention providers, without changes to the proposed text as published in the June 24, 1997 issue of the Texas Register (22 TexReg 6018). These sections are repealed to allow adoption of new funding rules, and the repeal will delete obsolete language. These sections describe applicability and general provisions and detail requirements regarding annual plan, staffing and special training, program evaluation, annual evaluation, participant rights, advocacy, family services, continuum of care, prevention education and skills training, alternative activities, problem identification and referral, information dissemination, community-based process, environmental and social policy, requirements for HIV early intervention services, HIV outreach, councils on alcohol and drug abuse requirements, infant primary prevention programs and infant intervention programs, and select performance measures. No comments were received regarding adoption of the repeal. The repeals are adopted under the Texas Health and Safety Code, sec.461.012(15), which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules governing the functions of the commission, including rules that prescribe the policies and procedures followed by the commission in administering any commission programs. The code affected by the repealed sections is the Texas Health and Safety Code, Chapter 461. 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 30, 1997. TRD-9709861 Mark S. Smock Deputy for Finance Administration Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 349-6609 SUBCHAPTER D.Organization 40 TAC sec.sec.144.311-144.313, 144.321-144.325 The Texas Commission on Alcohol and Drug Abuse adopts new sec.sec.144.311- 144.313 and sec.sec.144.321-144.325, concerning organizational requirements for providers funded by the commission. Sections 144.311, 144.312, and 144.321- 144.325, are adopted with changes to the proposed text as published in the June 24, 1997, issue of the Texas Register (22 TexReg 6019). Section 144.313 is adopted without changes and will not be republished. The new rules are adopted to replace existing rules for funded providers, which are being repealed. The term "provider" has been substituted for "organization" and "program" throughout the text when appropriate. These rules describe general provider responsibilities and requirements related to the organization's structure, governing board, HIV policies, and records. They also place restrictions on use of the commission's logo and slogan, require the provider to limit barriers, and mandate a complaint process and certain reports to the commission. These rules are being proposed to ensure funded providers have appropriate organizational components to administer the award. The commission received comments from the Association of Substance Abuse Service Providers of Texas, the Serenity Foundation of Texas, and a number of individuals. Comment: Eliminating the mandated training requirements for Board members is an improvement. Response: The commission has tried to make the rules less burdensome for providers. Comment: Please remove the requirement for board training on cultural sensitivity. The requirements is burdensome and of questionable impact on the real problem. Response: This requirements remains. The need for cultural awareness and sensitivity is particularly important because most boards do not reflect the diverse cultures that make up a large portion of the clients served. The commission tries to address this problem in a variety of ways, and has an advisory committee to help identify steps that can be taken to promote more culturally appropriate programs. One of the recommendations of this group was to require staff and board members to receive training in cultural awareness and sensitivity. While training alone will not ensure cultural sensitivity, it does heighten awareness and focus attention on the need for culturally appropriate services. This requirement also underscores the commission's position that this is an important issue. Comment: In relation to limiting barriers, the issues arises about discrimination vs. the appropriateness of the program to the client; how does this rule apply to culturally specific programs. And what if the program is not equipped to handle the severity of the mental illness? Response: The commission requires providers to identify a specific target population and design the program to meet the needs of that target population. The program cannot, however, arbitrarily exclude individuals who do not belong to the target population. Commission-funded programs must provide equal access to all applicants and make reasonable accommodations to provide services. Potentially difficult situations must be evaluated individually. The new sections are adopted under the Texas Health and Safety Code, Title 6, Subtitle B, sec.461.012(15), which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules governing the functions of the commission, including rules that prescribe the policies and procedures followed by the commission in administering any commission programs. The code affected by the new rules is the Texas Health and Safety Code, Title 6, Subtitle B, Chapter 461. sec.144.311.General Requirements. Funded providers shall establish and maintain effective internal programmatic and financial controls to ensure: (1) commission-funded programs are operated efficiently and effectively; (2) the provider maintains compliance with other funding and regulatory agencies; (3) appropriate controls are in place to safeguard assets; (4) commission funds are properly spent; (5) commission funds are properly accounted for; and (6) clients/participants receive appropriate services. sec.144.312. Organizational Structure. (a) All providers shall maintain a current chart of the organization's structure. (b) The provider shall maintain a current manual that includes all policies and procedures required by the commission. (1) Policies shall be approved by the board, reviewed annually, and revised as needed. (2) Procedures shall be approved by the executive director, reviewed annually, and revised as needed. (3) The provider shall require each employee to read the policies and procedures applicable to the position. (4) Updated copies of the manual shall be convenient and readily available to all staff. sec.144.321.HIV Policies. The provider shall adopt and implement the commission's workplace guidelines concerning individuals with AIDS and HIV infection, as required by the Americans with Disabilities Act and the Texas Health and Safety Code, sec.85.113. sec.144.322.Records. (a) The provider shall protect client/participant records and client/participant-identifying information from unauthorized disclosure in accordance with the federal regulations governing Confidentiality of Alcohol and Drug Abuse Patient Records, Code of Federal Regulations, Title 42, Part 2. (b) Personnel files shall contain: (1) a copy of the current job description signed by the employee; (2) application or resume with documentation of required qualifications; (3) documentation that required credentials were verified with the credentialing body; (4) annual performance evaluations; (5) personnel data that includes date hired, rate of pay, and documentation of all pay increases and bonuses. (c) If a provider closes business operations, it shall ensure that records relating to the contract are securely stored and accessible for at least three years. The provider shall provide the commission with the name and address of the responsible party. sec.144.323.Commission Logo and Slogan. The provider may not use the commission's logo and slogan on publications or video material unless the commission has given written approval. sec.144.324.Limiting Barriers. (a) The provider shall not discriminate against an individual or group based on race, religion, ethnicity, country of origin, age, disability (including mental illness), sexual orientation, or gender. The provider shall also ensure that no person or group of persons is restricted from receiving the same services or the same quality of services available to others. (b) The provider shall make all facilities and programs accessible to persons with disabilities as required by the Americans with Disabilities Act. The provider shall maintain documentation that it has conducted a self-inspection to evaluate compliance and implemented a corrective action plan to address identified deficiencies. sec.144.325.Complaints and Reports. (a) Providers shall have written policy and procedures for handling complaints from participants of funded programs. (b) The provider shall display a sign informing the public of the policy and procedures on complaints. The sign shall be prominently displayed at all times and shall provide notice of the commission's compliance division and its mailing address and toll-free phone number. (c) The provider shall report all allegations of abuse, neglect, and exploitation to the commission in writing within 24 hours, and submit documentation within two working days. The provider shall investigate the allegation, take appropriate action, and maintain documentation of the investigation and resulting actions. (d) The provider shall not retaliate against anyone who reports a violation or cooperates during an investigation or related activity. 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 30, 1997. TRD-9709834 Mark S. Smock Deputy for Finance Administration Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 349-6609 SUBCHAPTER E.Prevention 40 TAC sec.sec.144.401, 144.411-1144.415, 144.431-144.435, 144.441-144.448 The Texas Commission on Alcohol and Drug Abuse adopts the repeal of sec.sec.144.401, 144.411-144.427, 144.431-144.435, 144.441-144.444, 144.451, and 144.452, concerning requirements for providers funded treatment providers, without changes to the proposed text as published in the June 24, 1997 issue of the Texas Register (22 TexReg 6020). These sections are repealed to allow adoption of new funding rules, and the repeal will delete obsolete language. These sections describe applicability describe requirements regarding continuum of care, family services, medically indigent status and ability to pay, admission, assessment, waiting list, interim services, facility capacity system, provisions for intravenous drug use treatment providers, provisions for pregnant females, service area, diagnosis, client chart documentation, client absence from treatment, level/phase system, relapse prevention education, group size, general treatment services, Level I service requirements, Level II service requirements, Level III service requirements, Level IV service requirements, specialized treatment services for women, modified therapeutic communities, court commitment services, pharmacotherapy services, self evaluation, and select performance measures. No comments were received regarding adoption of the repeal. The repeals are adopted under the Texas Health and Safety Code, sec.461.012(15), which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules governing the functions of the commission, including rules that prescribe the policies and procedures followed by the commission in administering any commission programs. The code affected by the proposed new sections is the Texas Health and Safety Code, Chapter 461. 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 30, 1997. TRD-9709862 Mark S. Smock Deputy for Finance Administration Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 349-6609 SUBCHAPTER E.Treatment 40 TAC sec.sec.144.401, 144.411-144.427, 144.431-144.435, 144.441-144.444, 144.451, 144.452 The Texas Commission on Alcohol and Drug Abuse adopts new sec.sec.144.401, 144.411-144.415, 144.431-144.435, and 144.441-144.448, concerning program requirements for prevention programs funded by the commission. Sections 144.401, 144.414, 144.415, 144.431, 144.435, 144.442, 144.447, and 144.448 are adopted with changes to the proposed text as published in the June 24, 1997, issue of the Texas Register (22 TexReg 6021). Sections 144.411-144.413, 144.432-144.434, 144.441, and 144.443-144.446 are adopted without changes and will not be republished. The new rules are adopted to replace existing rules for funded providers, which are being repealed. The term "organization" has been replaced with the term "provider". In 144.401, the reference to intervention services was removed. In sec.144.415, text has been revised to clarify that the confidentiality regulations apply to all programs that provide services to identified individuals. Section 144.431 has been expanded to include screening for tuberculosis and sexually transmitted diseases. In 144.435(b)(4), the word "and" was added between "environmental" and "social." Section 144.442 has been reworded to make it more appropriate for children who do not access community services independently. The title of sec.144.447 has been changed from "Intervention Services" to "Additional Services", and the requirement for specific services has been eliminated. Language deleted when published was added to sec.144.448. These rules establish minimum standards for program design and implementation, self-evaluation, performance and activity measures, and participant rights. They also describe required components of special programs, including HIV early intervention programs, HIV outreach services, prevention resource centers, infant primary prevention and intervention programs, and core council services. Minimum standards are also established for a range of program components, including information dissemination, prevention education and skills training, alternative activities, problem identification and referral, community-based process, environmental and social policy, intervention services, and assessment for treatment. These rules are proposed to ensure that prevention programs funded by the commission provide appropriate services. The commission received comments from the Association of Substance Abuse Service Providers of Texas, Rainbow Days, Inc., and a number of individuals. Comment: The program planning process will need further explanation through the compliance manual. Commenter does not oppose the intent of establishing a process for monitoring, evaluating, and adjusting programs during the course of a three-year cycle, but has concern that it remains a practical, useful process and not develop into a complicated exercise. Response: The commission agrees fully that this should not result in a complicated exercise or additional paperwork. The intent of this rule is to help providers use existing processes and information more effectively. Comment: Is sec.144.415 appropriate application of the Code of Federal Regulations, Title 42, Part 2? The confidentiality rules usually are meant to protect alcoholic and addict patients, not alcohol and drug users. Response: Although the regulations use the term "substance abusers", the authorizing statute clearly states that the regulations are intended to protect any individual who may be stigmatized through their participation in or association with a substance abuse program, even if the individual is not actually abusing or even using illicit drugs. The proposed rules has been revised to specify that it applies to all programs that provide services to identified individuals. Comment: Commenter has concerns about all prevention programs being required to provide information about HIV and other infectious diseases to all children they serve through Information Dissemination. To simply hand a child a brochure, without accompanying discussion, could be confusing. And not all program designs allow for discussion of these topics. Also, since prevention services are provided in a variety of settings, there are different regulations concerning the discussion of these topics. It is suggested that the wording be changed to "may" instead of "shall" and that the appropriateness of the dissemination of this information be left to the discretion of the service provider. Response: Adolescents are identified as a population with one of the highest incidences of newly acquired HIV infection. The goal of this rule is to ensure that every opportunity is given for the child at risk to gain the information and skills necessary to avoid life threatening diseases which are preventable. The commission agrees that this information must be provided in a way that is appropriate for the age group involved, and many resources are available for providers to use. For school-based programs, many school districts offer specific curricula, appropriate to all age groups (such as, graduated materials). If a child is already receiving HIV and other communicable disease information from a school-based curriculum, then the prevention programs' ideal position would be to avail themselves as a resource for answering any questions a child in a prevention program might have. If the topic is never brought up or program staff is not trained, the child would not know to use the program as a resource. Comment: A child may have many barriers to accessing community services by virtue of their age and dependence on their parents/guardians. Having information about who to ask for help and giving permission to do so may be different from helping participants "develop skills". It is suggested that the wording in sec.144.442 be changed to something like "help participants gain knowledge and or/skills needed to access assistance or help with a problem". Response: The commission agrees and has revised the rule. Comment: Confusion exists about whether alternative activities and other strategies can be funded as stand alone programs. If it can be funded as a stand alone, it is suggested that a requirement be placed to build in an education and skill building component. Response: The program design must be based on a logical, conceptually sound framework that takes into consideration available research and evaluation data. Such data suggest that isolated strategies are generally not as effective as more comprehensive programs, so it is unlikely that the commission would fund alternative activities as a stand-alone program. The provider is required to implement whatever strategies are necessary to carry out the program design. The new sections are adopted under the Texas Health and Safety Code, Title 6, Subtitle B, sec.461.012(15), which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules governing the functions of the commission, including rules that prescribe the policies and procedures followed by the commission in administering any commission programs. The code affected by the new rules is the Texas Health and Safety Code, Title 6, Subtitle B, Chapter 461. sec.144.401.Applicability. The rules in this subchapter apply only to funded programs providing prevention services. sec.144.414.Select Performance Measurement Process. (a) The commission shall review compliance with targets at least twice each fiscal year and notify the program in writing if the program failed to achieve the expected level of performance. (b) The program shall respond to the notice within 30 days from the postmarked date of the notice. (c) After receiving the response, the commission shall take one of the following actions. (1) Negotiate a revision of performance measures with final approval from the commission. (2) Permit a one-time extension of the review period and require submission of a corrective action plan to the commission. The corrective action plan must include the program's method and timeframes for correcting or resolving the noted deficiencies. (d) In subsequent reviews, if the program fails to satisfactorily resolve any performance measure deficiencies as noted in the commission's review, the commission will implement further corrective action and may impose one or more of the following sanctions: (1) designation as a high-risk provider; (2) suspension or withholding of payments; (3) one-time decrease in the contract amount for the fiscal year; (4) permanent decrease in the contract amount; or (5) termination of the contract. sec.144.415.Participant Rights. (a) Each provider shall develop and implement a policy and age-appropriate procedures to protect the rights of children, families, and adults participating in a prevention program. (b) All participants have the right to: (1) be free from abuse, neglect, and exploitation; (2) be treated with dignity and respect; and (3) make a complaint to the program or the commission at any time. (c) Participants in an indicated program also have the right to: (1) a humane environment that provides reasonable protection from harm; (2) be informed of the program rules and regulations before participation; and (3) accept or refuse services after being informed of services and responsibilities. (d) When participants receive individualized services in an indicated prevention program, the provider shall inform participants and consenters (if applicable) about: (1) program goals and objectives; (2) rules and regulations; and (3) participant rights. (e) Programs that provide services to identified individuals shall maintain the confidentiality of participant-identifying information as required by the federal regulations governing Confidentiality of Alcohol and Drug Abuse Patient Records, Code of Federal Regulations, Title 42, Part 2. sec.144.431.HIV Early Intervention Services. (a) Programs receiving HIV early intervention funds shall provide comprehensive HIV services that include: (1) HIV antibody testing with appropriate pre- and post-test counseling components; (2) screening for tuberculosis and sexually transmitted diseases; and (3) case management to identify and access appropriate therapeutic measures, including laboratory analyses and medication to monitor and slow down or prevent HIV disease progression. (b) HIV early intervention services shall be provided to substance abuse treatment clients at the site where they are receiving treatment services, or to individuals identified as chemically dependent, HIV infected, and considering treatment as an option. HIV antibody testing may also be offered to individuals concerned about their risk of infection as a result of substance abuse activity. (c) HIV early intervention services can be provided only if the client voluntarily gives informed consent. Receiving these services shall not be required as a condition of receiving substance abuse treatment or other services. (d) Programs shall establish linkages with a comprehensive community resource network of related health and social service providers, receiving referrals from or referring clients to needed services. sec.144.435.Core Council Services. (a) A core council service program shall coordinate and centralize specific core services for the service area defined in the contract. (b) The program shall provide the following core services as specified in the contract and defined in this chapter: (1) information dissemination; (2) problem identification (including screening, referral, and follow-up); (3) assessment for treatment; (4) environmental and social policy; and (5) minors and tobacco activities. sec.144.442.Prevention Education and Skills Training. (a) Education and skills training must be designed to affect critical life and social skills and include skill-building and practice. (b) The activities must include extensive interaction where information is exchanged between the leader and the participants. (c) Activities shall be based on a written, time-specific curriculum or outline approved by the commission. (d) Each program that provides this strategy must help participants gain knowledge and/or skills needed to access assistance or help with a problem. (e) Documentation shall include, as applicable: (1) date, time, and duration of activity; (2) location of activity; (3) staff/volunteers conducting activity; (4) purpose and goal of activity; (5) number of participants; and (6) demographics of participants. sec.144.447. Additional Services. A program may offer additional services to meet the needs of individual participants, such as intervention counseling, crisis intervention, and support group opportunities. (1) Intervention counseling shall be conducted through confidential face-to-face contacts with participants and/or family members. (2) The program shall assess the individual's needs and develop a service plan to address the identified needs and the services to be provided. (3) The program shall document participation and follow-through, including any changes in the participant's status. (4) The program shall provide information and referrals for participant and family needs that cannot be met by the program. sec.144.448.Assessment for Treatment. (a) A program conducting assessments for treatment shall: (1) use an assessment tool that is appropriate for the target population; (2) provide the assessment through a confidential, face-to-face interview; and (3) make recommendations regarding the individual's treatment needs. (b) All assessments shall be conducted by qualified credentialed counselors or counselor interns working under appropriate supervision. 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 30, 1997. TRD-9709835 Mark S. Smock Deputy for Finance Administration Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 349-6609 SUBCHAPTER F.Treatment 40 TAC sec.sec.144.501, 144.511, 144.512, 144.521-144.525, 144.531-144.533, 144.541-144.544, 144.551-144.554 The Texas Commission on Alcohol and Drug Abuse adopts new sec.sec.144.501, 144.511, 144.512, 144.521-144.525, 144.531-144.533, 144.541-144.544, and 144.551-144.554, concerning program requirements for treatment programs funded by the commission. Sections 144.511, 144.521, 144.524, 144.525, 144.531, 144.532, 144.544, 144.551, 144.552, 144.553, and 144.554 are adopted with changes to the proposed text as published in the June 24, 1997 issue of the Texas Register (22 TexReg 6026). Sections 144.501, 144.512, 144.522, 144.523, 144.533, and 144.541-144.543, are adopted without changes and will not be republished. The new rules are adopted to replace existing rules for funded providers, which are being repealed. Throughout this subchapter, the term "organization" has been replaced with the term "provider". In 144.511(c), the listing of the information was changed. Section 144.521 has been revised to require consideration of extraordinary expenses during the financial assessment and to add federal poverty guidelines to the list of acceptable criteria. In sec.144.525, the text has been changed to allow providers to provide interim services indirectly through other organizations. To ensure consistency, sec.144.531 now references facility licensure standards instead of duplicating language. Individual counseling has been removed from the list of mandatory services in sec.144.532 because it is now required in facility licensure rules. This section has also been revised to clarify that the limitation on group size does not apply to seminars and other events designed for a large audience. Section 144.544 has been reordered. The definition of abstinence in sec.144.552 has been expanded. In sec.144.553, language has been added to provide more flexibility regarding client absences. In 144.554, hyphens were added to a phrase. These rules establish minimum standards for program design and implementation and self evaluation. They also state requirements related to priority populations, capacity management, interim services, assessments, general service requirements, service enhancements, specialized treatment services for females, court commitment services, pharmacotherapy services, and dual diagnosis programs. Additional requirements relate to performance measures, client billings, and reports of client data. The rules are proposed to ensure that clients receive appropriate services in treatment programs funded by the commission and that the commission has sufficient information about the services provided. The commission received comments from the Association of Substance Abuse Service Providers of Texas, Christian Farms/Treehouse, Inc., the Serenity Foundation of Texas, and a number of individuals. Comment: The program planning process will need further explanation through the compliance manual. The program does not oppose the intent of establishing a process for monitoring, evaluating, and adjusting programs during the course of a three-year cycle, but are concerned that it remains a practical, useful process and not develop into a complicated exercise. Response: The commission agrees fully that this should not result in a complicated exercise or additional paperwork. The intent of this rule is to help providers use existing processes and information more effectively. Comment: With an active addiction, financial resources are often drained even though a client may not be classified as indigent. Consideration must be given to a client profile that acknowledges the financial nature of addiction and allows access to treatment before all is lost. Many clients face special hardships that should be considered. Also, many individuals with modest incomes cannot afford treatment even though they are not indigent. Response: The listed financial criteria allow providers to consider extraordinary expenses and other factors that impact financial status. To make this clear, the commission has added language to the rule stating that the financial assessment should consider documented extraordinary expenses. The list of standard criteria has been expanded to include the federal poverty guidelines. In addition to determining when a client is eligible for free services, the rules require each program to establish a sliding fee scale, which ensures that clients will not be turned away simply because they have financial resources. Clients who are not eligible for free services will be charged based on their ability to pay. Comment: Section 144.525 states that the program must provide interim services. The current rule that states providers shall provide access to interim services is supported. Often these services are made available through cooperative arrangements with other agencies. This is a cost effective approach which reduces duplication of services. Response: The commission agrees and has revised the language. Comment: Please clarify relation to Federal Drug Administration's (FDA) requirements for interim services. Response: These requirements for interim services come from the federal block grant. They are consistent with Federal Drug Administration's (FDA) requirements, but FDA requires additional services, including daily dosing for pharmacotherapy clients. Comment: Group counseling is left out of the list of required services. Was this an oversight or intended? Additionally concern was voiced about the requirement to provide case management. The definition of case management is subject to broad interpretation as it relates to the expected intensity level of case management services. Given current funding levels, there needs to be clarification (possibly in the compliance manual) of what the expectations are. Response: Most of the services in this list are mandated by the commission's enabling legislation. Individual counseling was included because many programs neglect this important component. Individual counseling is now mandated in the licensure rules, so the commission has deleted it from the final rule. The compliance manual will provide more detailed guidance on expectations for case management. The general expectation is that a staff person will be responsible for coordinating the client's treatment and providing referral and follow-up with outside organizations as needed. These activities are usually carried out by the client's primary counselor. The rule does not require a separate "Case Manager" position. Comment: Section 144.532 states that group education sessions, didactic sessions, multi-family groups, and other groups must be limited to a maximum of 32 clients. These sessions should be unlimited where space is adequate. Response: All of these activities require interaction and cannot be effectively carried out with unlimited number of participants. Language has been added that the rule does not apply to special seminars, speakers, and other events specifically planned for a large audience. Comment: There is opposition to requiring any additional hours above and beyond those required by licensure rules. Most facilities have other activities which they deem vital to recovery which have not traditionally counted as professional treatment services. These activities are things such as voluntary bible studies, independent study hall, AA/NA meetings, facility graduations and peer led study groups. When the commission adds extra requirements it is often in the non- traditional areas that programs have to cut. Response: This rule does not require additional professional treatment services. In fact, all of the activities listed above would satisfy this requirement. The intent is to provide some structure and activities during evenings and weekends. Comment: It seems more appropriate to have requirements for evening and weekend services listed in the RFP as a value-added service instead of requiring it for all programs. Response: Because so many substance abusers have difficulty using free time appropriately, the commission is not willing to fund programs that provide no structure outside of regular business hours. Comment: The section on dual diagnosis and clear and removes lingering ambiguity regarding primary diagnosis. Comment: Please clarify major mental disorder. Is the Mental Health and Mental Retardation priority population a consideration? Response: This can include clients who are not part of the MHMR priority population. Additional clarification will be provided in the compliance guide. Comment: A maximum of four days per month (for holding an empty bed for a residential client) is too limiting, especially for Level III programs. This level by design usually affords the client opportunities for weekend passes of varying duration. These leaves are critical to the recovery process because they afford the client the opportunity to address relapse triggers and to utilize independently the sobriety based skills needed to maintain ongoing recovery. In addition, limiting planned leaves to two consecutive days may not be sufficient for maternity leave and/or other special circumstances such as allowing client who live long distances from treatment to return home to begin making continuum of care plans. It is recommended that the wording not put specific time limitations, but instead require justification for any leaves longer than two consecutive days. Response: This rule has been revised to allow greater flexibility. The new sections are adopted under the Texas Health and Safety Code, Title 6, Subtitle B, sec.461.012(15), which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules governing the functions of the commission, including rules that prescribe the policies and procedures followed by the commission in administering any commission programs. The code affected by the new rules is the Texas Health and Safety Code, Title 6, Subtitle B, Chapter 461. sec.144.511.Program Design and Implementation. (a) The program design must be based on a logical, conceptually sound framework with the intended result of reducing alcohol, tobacco, and other drug problems. The design should take into consideration current research and evaluation data and effectiveness of comparable programs relative to the needs of the target population. (b) The program shall develop a written plan for the contract period. The plan shall initially be developed as part of the application process and revised annually on the basis of needs data and results of self-evaluation. (c) The program shall identify and describe the target population, including specific information about: (1) age, gender, and ethnicity; (2) patterns of substance use; (3) social and cultural characteristics; (4) knowledge, beliefs, values, and attitudes; and (5) needs. (d) The program shall identify long-range goals which: (1) address identified needs and/or problems; and (2) clearly describe behavioral and/or societal changes to be achieved. (e) The program shall establish objectives for each contract period that are linked to the long range goals. Objectives must: (1) be realistic, measurable, and time-specific; and (2) include performance measures required in the contract. (f) The program design shall include key strategies and activities used to achieve program goals and objectives. Each strategy and activity must: (1) relate directly to the goals and objectives; (2) address identified needs; and (3) be appropriate for the target population. The program design, content, communications, and materials shall be: (A) available in the primary language of the target population; and (B) appropriate to the literacy level, gender, race, ethnicity, sexual orientation, age, and developmental level of the target population. (g) The program must also develop and implement an annual plan to provide employees with training and continuing education in the program's services. The plan must include cultural awareness and sensitivity training for all employees. sec.144.521.Client Eligibility. (a) The program shall complete and document a financial assessment of each client at admission. When determining a client's ability or inability to pay, the program shall consider documented extraordinary expenses. Unless the program has received written approval from the commission to use alternative financial assessment criteria, the program shall use one of the following: (1) criteria adopted by the Texas Department of Mental Health and Mental Retardation; (2) criteria adopted by the Texas Department of Health; (3) criteria adopted by the Texas Department of Human Services; or (4) the federal poverty guidelines (with eligibility for free services set at 150%). (b) The facility shall establish a sliding fee scale that corresponds to the selected financial assessment criteria. (c) No applicant shall be denied services based only on inability to pay. (d) Commission funds may be used to provide treatment for any adolescent client, regardless of ability to pay. sec.144.524.Facility Capacity System. (a) Treatment programs shall report available capacity and waiting list information through the commission's facility capacity management system and comply with procedures described in the applicable manual. (b) A provider with a pharmacotherapy program shall notify the commission through the capacity management system when the program's capacity reaches 90%. (c) If the system is not operating, the program must submit the information by phone or fax. sec.144.525.Interim Services. (a) When a program does not have capacity to admit an injecting drug user or pregnant female, the program shall make every effort to place the individual in another treatment facility or provide access to interim services. (b) Interim services shall: (1) be offered within 48 hours; (2) continue until the individual is admitted into treatment; and (3) include strategies to reduce the adverse health effect of intravenous drug use and to reduce the risk of transmission of disease. (c) For pregnant females, interim services shall also provide information and education about the effects of alcohol and drug use on the fetus and referrals for prenatal care. (d) The program shall maintain documentation of interim services provided. (e) Even when interim services are provided, an individual requesting treatment for intravenous drug use shall be admitted to an appropriate program within 120 days. sec.144.531.Screening and Assessment. (a) Clients receiving treatment services shall have a presenting problem which meets the appropriate DSM-IV criteria as specified in Chapter 148 of this title (relating to Facility Licensure). (b) The screening shall include a criteria-based evaluation to determine the appropriate level of service. (c) The psychosocial history and assessment for an adolescent shall take developmental issues into account and shall address child welfare involvement, peer relationships, and gang involvement. (d) The program shall provide education and shall assess each client's risk for HIV infection, tuberculosis, and sexually transmitted diseases based on the National Institute of Drug Abuse's Model for Risk Reduction Counseling and the Texas Department of Health Model Workplace Guidelines. sec.144.532.General Treatment Services. (a) All treatment programs shall comply with applicable chemical dependency treatment facility licensure requirements for the specified level of service established in Chapter 148 of this title (relating to Facility Licensure). (b) The program shall, to the extent possible and appropriate: (1) implement a systematic process to identify appropriate referrals for family members; (2) inform clients and involved family members of family services offered directly and through other community resources; and (3) document family participation and attempts to engage family members in services. (c) Levels II, III, and IV treatment programs funded by the commission shall provide: (1) education about dysfunctional relationships within the family; (2) coping skills training; (3) case management; (4) relapse prevention services; and (5) support group opportunities for adolescents and adults. (d) The program shall have written description of all educational and didactic sessions, including curricula, outlines, and activities. (e) Group size shall be limited to a number that allows effective interaction between the group and facilitator and between group members. (1) The counselor to client ratio in group counseling shall not exceed one to 16. (2) Group education sessions, didactic sessions, multifamily groups, and other groups are limited to a maximum of 32 clients. This limitation does not apply to seminars, outside speakers, or other events designed for a large audience. (f) The program shall establish links with available substance abuse and other mental health, health care, and social services to meet the needs of clients and family members. Agreements to coordinate services must be established in writing and shall include: (1) names of the organizations entering into the agreement; (2) services or activities each organization will provide; (3) signatures of authorized representatives; and (4) dates of action and expiration. sec.144.544.Dual Diagnosis Programs. (a) Dually diagnosed clients shall have concurrent diagnoses which meets the criteria of DSM-IV for a substance use disorder and a major mental disorder. (b) All treatment programs serving dual diagnosis clients shall: (1) train appropriate employees on the identification of substance abuse and mental disorders and document the training in personnel files; (2) develop and implement written procedures to properly identify clients exhibiting conditions or behavior that may suggest the need for dual diagnosis treatment; and (3) develop and implement written referral procedures that incorporate other available resources to assist in the referral and placement of clients who are inappropriate for dual diagnosis treatment. sec.144.551.Select Performance Measure Process. (a) The treatment program will be held to specific performance measures as stated in the contract terms and conditions. (b) The commission shall review actual performance with targets at least twice each fiscal year and notify the program in writing if the program failed to achieve the expected level of performance. (c) The program shall respond within 30 days from the postmark date of the commission's written notification. (d) After receiving the response, the commission shall take one of the following actions. (1) Negotiate a revision of performance measures with final approval from the commission. (2) Permit a one-time extension of the review period and require submission of a corrective action plan to the commission. The corrective action plan must include the program's method and timeframes for correcting or resolving the noted deficiencies. (e) In subsequent reviews, if the program fails to satisfactorily resolve any performance measure deficiencies as noted in the commission's review, the commission will implement further corrective action and may impose one or more of the following sanctions: (1) designation as a high-risk provider; (2) suspension or withholding of payments; (3) one-time decrease in the contract amount for the fiscal year; (4) permanent decrease in the contract amount; or (5) termination of the contract. sec.144.552.Select Performance Measure Definitions. (a) Completion of Treatment. This measure applies to Levels II, III, and IV, except for pharmacotherapy programs. For a client to have completed treatment, the client record must indicate that all of the following criteria have been met. (1) A client must substantially complete the planned duration of the program and treatment plan objectives. This means that the average of items (A) and (B) below must equal or exceed 75%. (A) The percentage of the planned duration of stay that was completed by the client. In programs with a variable length of stay, the planned duration of stay documented in the most recent treatment plan is used as a basis for calculation. (B) The percentage of the behavioral objectives identified in the original treatment plan and subsequent revisions that have been achieved by the client. (2) A discharge plan or transfer note must have been completed in accordance with the requirements noted in sec.148.322 of this title (relating to Discharge Plan) or sec.148.304 of this title (relating to Treatment Plan Reviews.) (3) The discharge summary or transfer note shall indicate whether the client has successfully completed treatment according to the above criteria, and must be signed by a qualified credentialed counselor. The client record must also contain supporting documentation for completion. (b) Abstinence. This measure applies to Levels II, III, and IV programs, except for pharmacotherapy programs. (1) For youth, abstinence is the percent of youth who report no use of alcohol or drugs within the past 30 days when contacted 60 days after discharge from the treatment program. For those youth who are transferred to another commission- funded level of service within the same program (therefore no follow-up is required), abstinence is the percent of transferred youth who report no use of alcohol or drugs during the 30 days prior to discharge or the duration of treatment, whichever is less. (2) For adults, abstinence is the percent of adults who report no use of their primary substance within the past 30 days when contacted 60 days after discharge from the treatment program. For those adults who are transferred to another commission-funded level of service within the same program (therefore no follow- up is required), abstinence is the percent of transferred adults who report no use of alcohol or drugs during the 30 days prior to discharge or the duration of treatment, whichever is less. (c) Referral Rate. This measure applies to Level I programs. Referral rate is the percentage of discharged clients who have completed Level I treatment and are referred or transferred for continuing substance abuse treatment as defined below. (1) Completion of Level I Treatment. For a client to have completed Level I treatment, the client record must indicate that both of the following criteria have been met. (A) Levels of toxic substances and withdrawal symptoms have been sufficiently reduced such that the client is medically stable and able to participate in a less intensive level of treatment. A statement to this effect must be signed by the medical supervisor of the program in the discharge summary or transfer note. (B) A discharge plan or transfer note must be completed prior to discharge or transfer in accordance with the requirements noted in sec.148.322 of this title (relating to Discharge Plan) or sec.148.304 of this title (relating to Treatment Plan Revisions). (2) Referral or Transfer. For a client to have been referred or transferred from Level I to continuing substance abuse treatment, the client record must indicate that one of the following criteria has been met. (A) A referral and an attempt to place the client in a less intensive level of treatment outside the program has been made. This must be documented in the client record. (B) The client has been transferred to a less intensive level of treatment within the program. The client record must include a transfer note to document the transfer. sec.144.553.Client Billings. (a) Treatment programs shall submit monthly client billings for each client served in the program who is supported fully or partially with commission funds. (b) Treatment programs funded through the unit cost payment mechanism shall use the client billing forms to request monthly reimbursement. Treatment programs funded through the financial assistance payment mechanism shall also submit client billing forms, but payments will be based on satisfactory submission of a request for advance or reimbursement (RFA). (c) Programs may bill for only one level and service type (outpatient or residential) per client per day. (d) A program may hold an empty residential bed and bill for a client who is on a planned, approved absence for up to two consecutive days. The frequency of approved absences shall be reasonable and appropriate and shall not exceed four days in a 30-day period, except as provided below. (1) Providers shall include planned absences for delivery in treatment plans for each pregnant female, and shall ensure that a bed is available for the female upon her return. (2) Absences for medical treatment (including delivery), court appearances, or other emergencies may exceed 48 hours, but commission approval is required if the absence exceeds 96 hours. (e) Billings with incomplete or invalid information may generate an error report. When a billing error report is received, the program shall promptly correct the errors or resubmit new client billings as needed. Errors must be corrected before the next billing cycle. (f) Forms submitted to the commission must contain complete and valid information. (g) The commission will not accept or process payment requests until corresponding Client Oriented Data Acquisition Process (CODAP) Admission forms have been submitted and all errors identified through the electronic interface system's edit checks have been corrected. (h) The provider shall maintain complete documentation for all services paid for by commission funds. In addition to the items required by licensure rules, the client record shall include the following information: (1) weekly summary progress notes which provide a summary of all scheduled groups attended by the client, including the dates covered, the topics, the number of hours, and the client's level of participation; (2) documentation of the purpose, duration, and justification of any approved absence from a residential program; (3) a record of all case management, referral, linkage, and follow-up activities; and (4) a progress note documenting the information gathered in the 60-day follow-up contact, including: (A) the date and time of successful follow-up contact; (B) the name of the person contacted and relationship to the client; (C) the telephone number of the person contacted; (D) documentation of any unsuccessful attempts at follow-up; and (E) the signature of the person who conducted and documented the follow-up interview. sec.144.554.CODAP Reports. (a) All treatment programs shall submit Client Oriented Data Acquisition Process (CODAP) reports to the commission on all clients receiving commission-funded substance abuse treatment services. This includes: (1) A CODAP Facility Summary (CFS) for each month of the contract period; (2) a youth or adult Admission Report (new, readmission, or transfer) for each client who will be billed to the commission; (3) a youth or adult Discharge Report each time a client transfers from one commission funded level of service and/or site into another commission funded level of service and/or site; (4) a youth or adult Discharge Report when the client ceases receiving commission-funded services; and (5) a youth or adult Follow-up Report, which should be completed on each client at least 60 days from his or her last face-to-face substance abuse treatment contact. (A follow-up report is not required for certain discharge reasons listed in the CODAP Reference and Instruction Manual.) (b) Programs shall comply with reporting procedures detailed in the CODAP Reference and Instruction Manual. Any changes to instructions that are mailed to treatment programs from the commission prior to revising the CODAP manual will supersede the instructions in the current CODAP manual. (c) Each month, the program must verify that all clients appearing on the Active Clients List are still receiving a commission-funded level of service. If not, a discharge report must be submitted for each client as instructed under paragraph (3) or (4) of subsection (a) of this section. (d) Each month, the program shall verify on the CODAP Facility Summary: (1) that all discharge and follow-up reports due that month (and those due in previous months, if applicable) are being transmitted; or (2) provide clear justification for not transmitting all required reports and the date the reports will be transmitted. (e) The program must submit CODAP corrections and/or missing forms listed on the CODAP Error Report or CODAP Rejected Forms Report monthly. The corrections are due along with the next month's CODAP reports by the due date listed in the CODAP Reference and Instruction Manual. (f) If a program is terminated, the provider must submit discharge reports for all clients that are on the Active Clients List and correct all errors on the CODAP Error Reports as directed in the close-out procedures (g) If the provider closes a site, but still has other commission-funded treatment sites, the provider must submit: (1) discharge reports for all clients that were in the closed site; (2) follow-up reports on all clients that were discharged from the closed site (once 60 days have elapsed from their date of discharge); and (3) correct errors on CODAP Error Report (if any). 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 30, 1997. TRD-9709836 Mark S. Smock Deputy for Finance Administration Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 349-6609 SUBCHAPTER F.Reports 40 TAC sec.sec.144.511, 144.512, 144.521-144.531 The Texas Commission on Alcohol and Drug Abuse adopts the repeal of sec.sec.144.511, 144.512, and 144.521-144.531, concerning reporting requirements for funded providers, without changes to the proposed text as published in the June 24, 1997, issue of the Texas Register (22 TexReg 6031). These sections are repealed to allow adoption of new funding rules, and the repeal will delete obsolete language. These sections establish general provisions and describe requirements regarding the electronic forms interchange system, CODAP reports, client billings, TCADA- FACTS form, performance and activity measures, payment request procedures, financial status reports, quarterly narrative reports, close-out, and historically underutilized business reports. No comments were received regarding adoption of the repeal. The repeals are adopted under the Texas Health and Safety Code, sec.461.012(15), which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules governing the functions of the commission, including rules that prescribe the policies and procedures followed by the commission in administering any commission programs. The code affected by the repealed sections is the Texas Health and Safety Code, Chapter 461. 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 30, 1997. TRD-9709828 Mark S. Smock Deputy for Finance Administration Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 349-6609 SUBCHAPTER G.Audits 40 TAC sec.sec.144.611-144.615, 144.621-144.624, 144.631-144.633 The Texas Commission on Alcohol and Drug Abuse adopts the repeal sec.sec.144.611-144.615, 144.621-144.624, and 144.631-144.633, concerning auditing requirements for funded providers, without changes to the proposed text as published in the June 24, 1997, issue of the Texas Register (22 TexReg 6031). These sections are repealed to allow adoption of new funding rules, and the repeal will delete obsolete language. These sections include provisions regarding annual audits, auditor qualifications, audit agreement, monitoring, audit report, audit due date, corrective action plan, commission review of audit report, acceptance letters, compliance review, and corrective action. No comments were received regarding adoption of the repeal. The repeals are adopted under the Texas Health and Safety Code, sec.461.012(15), which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules governing the functions of the commission, including rules that prescribe the policies and procedures followed by the commission in administering any commission programs. The code affected by the repealed sections is the Texas Health and Safety Code, Chapter 461. 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 30, 1997. TRD-9709829 Mark S. Smock Deputy for Finance Administration Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 349-6609 SUBCHAPTER H.Sanctions 40 TAC sec.sec.144.711-144.714, 144.721-144.727, 144.731, 144.732 The Texas Commission on Alcohol and Drug Abuse adopts the repeal of sec.sec.144.711-144.714, 144.721-144.727, 144.731, and 144.732, concerning sanctions for funded providers, without changes to the proposed text as published in the June 24, 1997, issue of the Texas Register (22 TexReg 6032). These sections are repealed to allow adoption of new funding rules, and the repeal will delete obsolete language. These sections establish criteria for sanctions and address fraudulent billing, abuse and neglect, other violations, withholding cash payments, disallowing costs, suspension, termination, withholding future awards, other remedies, reducing award amount, requirements for high-risk organizations, and effects of suspension and termination. No comments were received regarding adoption of the repeal. The repeals are adopted under the Texas Health and Safety Code, sec.461.012(15), which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules governing the functions of the commission, including rules that prescribe the policies and procedures followed by the commission in administering any commission programs. The code affected by the proposed new sections is the Texas Health and Safety Code, Chapter 461. 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 30, 1997. TRD-9709830 Mark S. Smock Deputy for Finance Administration Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 349-6609 CHAPTER 148.Facility Licensure SUBCHAPTER A.Licensure Information General Provisions 40 TAC sec.148.1, sec.148.2 The Texas Commission on Alcohol and Drug Abuse adopts amendments to sec.148.1 and sec.148.2, concerning licensure information, without changes to the proposed text as published in the June 24, 1997, issue of the Texas Register (22 TexReg 6033). The amendments are adopted to clarify existing provisions. These sections define the purpose of the chapter and establish exemptions from licensure. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Health and Safety Code, Title 6, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. The code affected by the adopted rules is the Texas Health and Safety Code, Title 6, Subtitle B, 464. 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 30, 1997. TRD-9709847 Mark S. Smock Deputy for Finance Administration Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 349-6609 40 TAC sec.148.3 The Texas Commission on Alcohol and Drug Abuse adopts the repeal of sec.148.3, concerning licensure information, without changes to the proposed text as published in the June 24, 1997, issue of the Texas Register (22 TexReg 6033). The repeal is adopted because the language is not necessary. This section describes the applicability of licensure rules. No comments were received regarding adoption of the repeal. The repeal is adopted under the Texas Health and Safety Code, Title 6, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. The code affected by the repealed section is the Texas Health and Safety Code, Title 6, Subtitle B, 464. 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 30, 1997. TRD-9709837 Mark S. Smock Deputy for Finance Administration Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 349-6609 40 TAC sec.148.3 The Texas Commission on Alcohol and Drug Abuse adopts new sec.148.3, concerning licensure information, with changes to the proposed text as published in the June 24, 1997, issue of the Texas Register (22 Tex Reg 6034). The new section is adopted to streamline licensure procedures. Several provisions have been clarified. This section explains requirements for licensure of multiple sites and services. The commission received comments from the Association of Substance Abuse Service Providers of Texas, the Serenity Foundation of Texas, and a number of individuals. Comment: This is a practical approach that will facilitate service delivery. Response: The commission agrees with this comment. The new rules are adopted under the Texas Health and Safety Code, Title 6, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. The code affected by the adopted rules is the Texas Health and Safety Code, Title 6, Subtitle B, 464. sec.148.3.Sites and Services. (a) The facility shall have a licensure certificate for each site it operates showing the level(s) of service the facility is authorized to provide. (b) A facility that has received commission approval to provide a specific level of service may provide that service at any of its licensed sites or through extension services. (c) A licensed facility shall have written approval from the commission before accepting court commitments. (d) The provider shall have written approval from the commission as a clinical training institution before designating and compensating interns to perform counseling, assessments, or treatment interventions. (e) The provider shall have written approval from the commission as a practicum provider before providing practicum supervision for counselor trainees. 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 30, 1997. TRD-9709842 Mark S. Smock Deputy for Finance Administration Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 349-6609 Licensure Procedures 40 TAC sec.sec.148.21-148.27 The Texas Commission on Alcohol and Drug Abuse adopts amendments to sec.sec.148.21-148.27, concerning licensure information. Section 148.27 is adopted with changes to the proposed text as published in the June 24, 1997, issue of the Texas Register (22 TexReg 6034). Sections 148.21-148.26 are adopted without changes and will not be republished. The amendments are adopted to streamline the licensure process, allow acceptance of agency and commercial checks, and clarify the wording of existing provisions. Section 148.27 has been revised to delete language about removing records from the program site. These rules describe procedures for new license applications, license renewals, changes in licensure status, changes in ownership, licensure fees, and program closures. The rules also define the parameters for review of licensed facilities. The commission received comments from the Association of Substance Abuse Service Providers of Texas, the Serenity Foundation of Texas, Christian Farms/Treehouse, Inc., Riverside Hospital, and a large number of individuals. The comments all related to removal of records from the program site. Comment: Removing records from the property is in violation of the Code of Federal Regulations, Title 42, Part 2, and violates client confidentiality Also, the provider is the legal custodian of the records, and must be able to produce original records for other audits if needed. Change language to state that "copies shall be made available for removal" or "Any documents which need to be removed will be taken as copies at the expense of the commission." Response: The commission has deleted language about removing original records from the premises because we are confident that providers will fully cooperate with requests to duplicate records needed for audit purposes. The confidentiality statutes and regulations do, however, give the commission explicit authority to remove client records from the program site. The code of Federal Regulations, Title 42, sec.2.53 states that records containing patient- identifying information may be copied or removed from program premises by any federal, state, or local governmental agency which provides financial assistance to the program or is authorized by law to regulate its activities. This section also has strict requirements that protect client confidentiality when records are copied or removed for audit or evaluation activities. Specifically, the information may be used only to carry out the audit or evaluation and may only be disclosed back to the program from which it was obtained. In addition, the agency must maintain the patient-identifying information in accordance with specified security requirements and destroy all patient-identifying information upon completion of the audit or evaluation. The commission takes its responsibility for protecting client information very seriously. Client-identifying information is never cited in an audit report or any other document subject to public examination, and internal procedures ensure that staff access is limited to those individuals directly involved with the audit. The amendments are adopted under the Texas Health and Safety Code, Title 6, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. The code affected by the adopted rules is the Texas Health and Safety Code, Title 6, Subtitle B, 464. sec.148.27.Licensure Review. (a) The commission may conduct a scheduled or unannounced on-site inspection or request materials for review. (b) The applicant shall allow commission staff to access the facility's grounds, buildings, and records and to interview or survey members of the governing body, staff, and clients. The applicant shall make all property, records, and documents related to the licensure application available for examination, copy, or reproduction during normal business hours, on or off premises. (c) The applicant shall correct identified deficiencies promptly. (d) The applicant shall not provide chemical dependency treatment services before receiving written notice of licensure approval. (e) The facility shall display the licensure certificate prominently at each licensed site. 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 30, 1997. TRD-9709848 Mark S. Smock Deputy for Finance Administration Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 349-6609 Definitions 40 TAC sec.148.61 The Texas Commission on Alcohol and Drug Abuse adopts amendments to sec.148.61, concerning definitions, with changes to the proposed text as published in the June 24, 1997, issue of the Texas Register (22 TexReg 6036). The adopted amendments add new definitions for life skills training, day treatment, and private practice and to clarify some of the existing definitions. Definitions have been added for acute withdrawal, assessment, process counseling, and treatment intervention. The term "facility director" has been replaced with "executive director". Definitions of "life skills training" and "private practice" have been expanded, and a number of cross references have been added. These rules define the terms used in this chapter. The commission received comments from the Association of Substance Abuse Service Providers of Texas, the Serenity Foundation of Texas, Christian Farms/Treehouse, Inc., and a number of individuals. Comment: Clear definitions need to be added for counseling, education, assessment, and crisis intervention. Response: A definition for assessment has been added. Cross references have been added for the terms counseling and education. A definition has also been added for treatment intervention, which replaces crisis intervention. Comment: The definition of counselor should be made consistent with Chapter 144. Response: The definitions are now consistent. Comment: The definition of private practice appears to have exceeded requirements of mental health licensing boards. Response: The commission accepts the definitions of other licensing boards with respect to private practice. This definition applies to licensed chemical dependency counselors and in situations where another board does not provide guidance. The definition has been revised to clarify this. The amendments are adopted under the Texas Health and Safety Code, Title 6, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. The code affected by the adopted rules is the Texas Health and Safety Code, Title 6, Subtitle B, 464. sec.148.61. Definitions. The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise. Acute withdrawal-Withdrawal symptoms that threaten the physical safety of the client, including but not limited to: seizures, hypertensive crisis, deliriums tremens, and severe dehydration with metabolic imbalances. Approved clinical training institution-An individual or legal entity approved by the commission to supervise a counselor trainee who performs counseling, assessments, or interventions. The commission currently recognizes chemical dependency treatment facilities licensed by the commission (or exempt from commission licensure) which are approved as clinical training sites. Other programs or entities requesting this designation must receive approval on a case-by-case basis. Assessment (treatment)-The process used to gain sufficient information to identify, among other things, the participant's strengths, problems, and needs as they relate to the use/abuse of alcohol and/or other drugs and the risk of contracting or transmitting infectious diseases/sexually transmitted diseases. Chemical dependency counselor- A qualified credentialed counselor or counselor intern working under direct supervision. Client-An individual who has been admitted to a chemical dependency treatment facility licensed by the commission and is currently receiving services. A licensed chemical dependency counselor providing chemical dependency services at a facility shall not have a non-professional relationship with any client receiving chemical dependency or related services from the facility for two years after the client is discharged. Consenter-The individual legally responsible for giving informed consent for a client. This may be the client, parent, guardian, or conservator. Unless otherwise provided by law, a legally competent adult is his or her own consenter. Consenters include adult clients, clients 16 or 17 years of age, and clients 13-16 years of age admitting themselves for chemical dependency counseling under the provisions of the Family Code, sec.32.004. Consultant-An individual who is not an employee who provides professional advice or services to the facility for compensation. Counselor-See chemical dependency counselor. Counselor intern (CI)-A person pursuing a course of training in chemical dependency counseling at a regionally accredited institution of higher education or an approved clinical training institution who has been designated as a counselor intern by the institution. The activities of a counselor intern shall be performed under the direct supervision of a qualified credentialed counselor. Counselor trainee-A person working to accumulate the 4,000 hours of supervised work experience required for licensure as a chemical dependency counselor. A trainee receiving compensation for performing assessments, counseling, or treatment interventions shall be designated as a counselor intern by a regionally accredited institution of higher education or an approved clinical training institution. Day treatment-An outpatient program where the client spends more than five consecutive hours at the program site. Direct supervision-Oversight and direction of a counselor trainee provided by a qualified credentialed counselor (QCC). If the trainee has less than 2,000 hours of supervised work experience, the supervisor must be on site when the trainee is providing services. If the trainee has at least 2,000 hours of documented supervised work experience, the supervisor may be on site or immediately accessible by telephone. The qualified credentialed counselor shall: (A)-(E) (No change.) Discharge-The time when a client leaves a facility and will no longer be receiving chemical dependency treatment from that facility. Education-See chemical dependency education. Executive director-The individual authorized by the governing body to act on its behalf in the overall administration of the facility. Governing body-The individual or individuals legally established to operate a facility. The governing body has ultimate legal authority and responsibility for the facility's finances, services and operations. Intervention and assessment service-A service that offers assessment, counseling, evaluation, treatment intervention, or referral services or makes treatment recommendations to an individual with respect to chemical dependency. Licensed health professional-A physician, physician assistant, advance practice nurse, registered nurse, or licensed vocational nurse as defined in these rules. Life Skills Training-A formalized program of training, based upon a written program description to assist the client in acquiring personal habits, attitudes, values, and social interaction skills that will enable the client to function effectively and/or become gainfully employed. It includes instruction in communication, stress management, problem solving, daily living, and decision making. Mental health referral service-See Qualified Mental Health Referral Service. Private practice-Unless otherwise defined by a licensing board, an individual's professional counseling practice in which the individual: (A) provides all treatment services personally; (B) does not report to a supervisor or utilize subordinate counseling staff; (C) is a licensed chemical dependency counselor or exempt from licensure. Process counseling-Counseling designed to help clients identify and explore the feelings and emotions they encounter and resolve areas of conflict that led to their problems associated with chemical dependency. It does not include cognitively oriented or psychoeducational groups. Qualified credentialed counselor (QCC)-A licensed chemical dependency counselor or one of the professionals listed below who can demonstrate two years of chemical dependency counseling experience or one year of chemical dependency counseling experience and 90 clock hours (six semester hours) of chemical dependency training including the 12 core functions from an accredited college or university or an education provider approved by the commission. Documentation shall be available upon request. The following professionals are eligible to serve as QCCs: (A)-(H) (No change.) Staff-Individuals employed by the facility to provide services for the facility in exchange for money or other compensation. Treatment-See chemical dependency treatment. Treatment intervention-A meeting designed to persuade a chemically dependent individual to enter treatment. 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 30, 1997. TRD-9709849 Mark S. Smock Deputy for Finance Administration Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 349-6609 SUBCHAPTER B.Facility Management Administration 40 TAC sec.sec.148.71-148.73 The Texas Commission on Alcohol and Drug Abuse adopts amendments to sec.sec.148.71-148.73, concerning facility management. Section 148.73 is adopted with changes to the proposed text as published in the June 24, 1997 issue of the Texas Register (22 Tex Reg 6037). Section 148.71 and sec.148.72 are adopted without changes and will not be republished. The amendments are adopted to clarify existing provisions. In sec.148.73, the term "facility director" has been replaced with the term "executive director". These rules establish requirements for the governing body, the executive director, and policies and procedures. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Health and Safety Code, Title 6, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. The code affected by the adopted rules is the Texas Health and Safety Code, Title 6, Subtitle B, 464. sec.148.73. Policies, Procedures, and Licensure Rules. (a)-(b) (No change.) (c) The governing body shall establish policies that comply with licensure rules, and the executive director facility director shall use the policies to develop and implement all needed procedures. (d) (No change.) (e) The facility shall inform staff about any changes to the policy and procedure manual that are relevant to their job duties, document the notification, and provide training as needed. 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 30, 1997. TRD-9709850 Mark S. Smock Deputy for Finance Administration Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 349-6609 40 TAC sec.148.75 The Texas Commission on Alcohol and Drug Abuse adopts the repeal of sec.148.75, concerning facility management, without changes to the proposed text as published in the June 24, 1997, issue of the Texas Register (22 TexReg 6038). The repeal is adopted because the rules in this section are being incorporated into another section of the rules. This section describes required facility reports. No comments were received regarding adoption of the repeals. The repeal is adopted under the Texas Health and Safety Code, Title 6, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. The code affected by the repealed section is the Texas Health and Safety Code, Title 6, Subtitle B, 464. 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 30, 1997. TRD-9709838 Mark S. Smock Deputy for Finance Administration Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 349-6609 Personnel and Staff Development 40 TAC sec.148.119 The Texas Commission on Alcohol and Drug Abuse adopts new sec.148.119, concerning personnel and staff development, with changes to the proposed text as published in the June 24, 1997, issue of the Texas Register (22 TexReg 6039). The new section is adopted to create a separate section for this topic, which was previously combined with unrelated rules. The phrase "crisis interventions" has been replaced with "treatment interventions". These rules require facilities to obtain approval as clinical training institutions if they compensate counselor interns for performing counseling, assessments, or crisis intervention. No comments were received regarding adoption of the new rules. The new rules are adopted under the Texas Health and Safety Code, Title 6, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. The code affected by the adopted rules is the Texas Health and Safety Code, Title 6, Subtitle B, 464. sec.148.119.Clinical Training Institutions. A facility shall not compensate a counselor trainee for performing counseling, assessments, or treatment interventions unless the facility has received a certificate of registration from the commission to be a clinical training institution and the facility has designated the trainee as a counselor intern. To be approved as a clinical training institution, a facility shall apply for approval and have: (1) a written description of the clinical training goals and objectives; (2) a written description of the clinical training experiences and activities; (3) a documented system of direct supervision; and (4) a documented system for evaluating the progress of interns in writing and providing them with appropriate information and guidance. 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 30, 1997. TRD-9709843 Mark S. Smock Deputy for Finance Administration Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 349-6609 Safety 40 TAC sec.148.131, sec.148.132 The Texas Commission on Alcohol and Drug Abuse adopts the repeal of sec.148.131 and sec.148.132, concerning safety, without changes to the proposed text as published in the June 24, 1997, issue of the Texas Register (22 TexReg 6039). The repeal is adopted because these sections are being moved to a different subchapter to improve organization. This section describes the requirements for general environment and emergency evacuation. No comments were received regarding adoption of the repeals. The repeals are adopted under the Texas Health and Safety Code, Title 6, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. The code affected by the repealed sections is the Texas Health and Safety Code, Title 6, Subtitle B, 464. 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 30, 1997. TRD-9709839 Mark S. Smock Deputy for Finance Administration Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 349-6609 SUBCHAPTER C.Client Management Client Rights 40 TAC sec.148.143, sec.148.147 The Texas Commission on Alcohol and Drug Abuse adopts amendments to sec.148.143 and sec.148.147, concerning client rights, without changes to the proposed text as published in the June 24, 1997, issue of the Texas Register (22 TexReg 6040). The amendments are adopted to clearly identify the topic of required procedures and to clarify that certain rights apply only to clients in residential programs. These rules describe additional rights for voluntary clients and the grievance process. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Health and Safety Code, Title 6, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. The code affected by the adopted rules is the Texas Health and Safety Code, Title 6, Subtitle B, 464. 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 30, 1997. TRD-9709851 Mark S. Smock Deputy for Finance Administration Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 349-6609 40 TAC sec.148.148 The Texas Commission on Alcohol and Drug Abuse adopts new sec.148.148, concerning request for discharge, without changes to the proposed text as published in the June 24, 1997, issue of the Texas Register (22 TexReg 6040). The new section is adopted because these rules are being moved from another subchapter. These rules establish standards a facility must meet when a client requests to be discharged. No comments were received regarding adoption of the new rules. The new rules are adopted under the Texas Health and Safety Code, Title 6, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. The code affected by the adopted rules is the Texas Health and Safety Code, Title 6, Subtitle B, 464. 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 30, 1997. TRD-9709844 Mark S. Smock Deputy for Finance Administration Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 349-6609 Abuse, Neglect, and Exploitation 40 TAC 148.161 The Texas Commission on Alcohol and Drug Abuse adopts amendments to sec.148.161, concerning client abuse, neglect, and exploitation, with changes to the proposed text as published in the June 24, 1997, issue of the Texas Register (22 TexReg 6041). The amendment is adopted to clarify that the facility must have a written policy and procedure to implement these rules. The term "facility director" has been replaced with the term "executive director". These rules describe requirements to protect clients from abuse, neglect, and exploitation. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Health and Safety Code, Title 6, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. The code affected by the adopted rules is the Texas Health and Safety Code, Title 6, Subtitle B, 464. sec.148.161.Client Abuse, Neglect, and Exploitation. (a) The facility shall implement a written policy and procedures to protect clients from abuse, neglect, and exploitation. (b) Any person who receives an allegation or has reason to suspect that a client has been, is, or will be abused, neglected, or exploited shall immediately inform the executive director or designee. (c) If the allegation involves sexual exploitation, the executive director shall also comply with reporting requirements listed in the Civil Practice and Remedies Code, sec.81.006. (d) The executive director shall take immediate action to prevent or stop the abuse, neglect, or exploitation and provide appropriate care and treatment. (e) The executive director or designee shall make a verbal report to the commission within 24 hours. This is in addition to the reports specified in the Texas Human Resources Code, sec.48.082 and the Texas Family Code, sec.261.001. (f) The person who reported the incident shall submit a written incident report to the executive director within 24 hours. (g) The executive director shall send a written report to the commission within two working days after receiving notification of the incident. This report shall include: (1) the name of the client and the person the allegations are against; (2) the information required in the incident report or a copy of the incident report; (3) other individuals, organizations, and law enforcement notified. (h) The executive director or designee shall also notify the legal consenter. If the client is the legal consenter, family members and significant others may be notified only if the client gives written consent. (i) The facility shall investigate the complaint and take appropriate action unless otherwise directed by the commission. (j) The governing authority or its designee shall take action needed to prevent any confirmed incident from recurring. (k) The facility shall: (1) document all investigations and resulting actions and keep the documentation in a central file; (2) have a written policy that clearly prohibits the abuse, neglect, and exploitation of clients and a written procedure that defines the steps that will be taken to investigate and resolve any alleged incident; (3) enforce the policy and procedure and provide appropriate sanctions for confirmed violations. 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 30, 1997. TRD-9709852 Mark S. Smock Deputy for Finance Administration Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 349-6609 Client Information 40 TAC sec.148.171 The Texas Commission on Alcohol and Drug Abuse adopts amendments to sec.148.171, concerning client information, without changes to the proposed text as published in the June 24, 1997, issue of the Texas Register (22 TexReg 6041). The amendment is adopted to clarify that the facility must have a system for documenting HIV-related medical information that facilitates that delivery of coordinated care and a written policy and procedure to implement rules for client record security. These rules describe requirements related to client record security. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Health and Safety Code, Title 6, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. The code affected by the adopted rules is the Texas Health and Safety Code, Title 6, Subtitle B, 464. 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 30, 1997. TRD-9709853 Mark S. Smock Deputy for Finance Administration Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 349-6609 Crisis Management 40 TAC sec.sec.148.181-148.183, 148.185 The Texas Commission on Alcohol and Drug Abuse adopts amendments to sec.sec.148.181-148.183 and 148.185, concerning crisis management. Section 148.181 and sec.148.183 are adopted with changes to the proposed text as published in the June 24, 1997 issue of the Texas Register (22 TexReg 6042). Section 148.182 and sec.148.185, are adopted without changes and will not be republished. The amendment is adopted to require review of special treatment procedures within 24 hours and to clarify that the facility must have a written policy and procedure to implement these rules. The term "facility director" has been replaced with the term "executive director". These rules describe requirements for significant incident reports, responding to emergencies, special treatment procedures, and adolescents absent without permission. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Health and Safety Code, Title 6, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. The code affected by the adopted rules is the Texas Health and Safety Code, Title 6, Subtitle B, 464. sec.148.181.Significant Incident Reports. (a) Staff shall complete an incident report for all significant client incidents, including: (1)-(11) (No change.) (12) clients absent without permission from a residential or day treatment program. (b)-(e) (No change.) (f) The executive director shall report these incidents to the commission in writing within 72 hours of discovery: (1) fires and natural disasters; (2) substantial disruption of program operation; (3) death of an active client (on or off the program site); and (4) violations of laws, rules, and professional and ethical codes of conduct. (g) The executive director shall report all incidents of alleged client abuse, neglect, and exploitation to the commission as described in sec.148.161 of this title (relating to Client Abuse, Neglect, and Exploitation). (h) The facility shall store incident reports in a central file. (i) Once a year, the executive director or designee shall review all incident reports to: (1)-(3) (No change.) (j) The facility shall have a procedure to ensure compliance with this section. sec.148.183.Special Treatment Procedures. Staff shall use special treatment procedures appropriately to protect the health, safety, and rights of clients and other individuals. (1) The governing body shall adopt a policy to either authorize or prohibit the use of personal restraint, mechanical restraint, and seclusion. (2)-(5) (No change.) (6) Staff shall obtain authorization from the supervising qualified credentialed counselor before starting restraint or seclusion or as soon as possible after implementing the procedure. (A)-(C) (No change.) (7)-(10) (No change.) (11) Clinical staff shall evaluate the incident within 24 hours and develop other written strategies for managing the client's behavior and preventing similar incidents. (12) The executive director or designee shall: (A) review all incident reports involving special treatment procedures; (B) investigate unusual or possibly unjustified use of the procedures; and (C) take appropriate action to address any identified problems. (13)-(16) (No change.) 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 30, 1997. TRD-9709854 Mark S. Smock Deputy for Finance Administration Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 349-6609 SUBCHAPTER D.Program Services General Program Services Provisions 40 TAC sec.148.202 The Texas Commission on Alcohol and Drug Abuse adopts amendments to sec.148.202, concerning general program services provisions, with changes to the proposed text as published in the June 24, 1997, issue of the Texas Register (22 TexReg 6043). The amendment is adopted to require procedures for the care of pregnant women and to clarify existing requirements. The proposed rule has been revised to require at least one staff person to demonstrate knowledge and/or experience in the special needs of pregnant women. This is to replace a training requirement proposed in a separate section. These rules describe service requirements that apply to all programs. The commission received comments from the Serenity Center of Texas and Christian Farms/Treehouse, Inc. Comment: Care of the pregnant client should be handled through direct doctor's orders. Rather than specify procedures for the care of pregnant clients, perhaps require programs to ensure that the client receives appropriate care as directed by the physician. Response: The commission agrees that care of the pregnant client should be handled through direct doctor's orders, and the rules require programs to refer pregnant clients to a primary care provider for appropriate prenatal care. The purpose of this standard is to ensure that the program has an appropriate regimen for pregnant clients which can be implemented as soon as the client is admitted and which can be used in situations where the primary care physician does not provide detailed written instructions. This would ensure pregnant clients are not given inappropriate medication and that their diet and activities are suitable. Certainly these basic procedures would be supplemented and/or replaced with more specific doctor's orders for each individual client. The amendments are adopted under the Texas Health and Safety Code, Title 6, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. The code affected by the adopted rules is the Texas Health and Safety Code, Title 6, Subtitle B, 464. sec.148.202. Services Required In All Programs. (a) All services shall be delivered according to a written plan which includes a service schedule listing services provided and timeframes in which they are provided. (b) (No change.) (c) Members of the client's treatment team shall demonstrate effective communication and coordination of efforts and activities. (d) Every residential client shall have a medical history and physical examination that is signed by a physician, physician assistant, or advanced nurse practitioner. (e)-(f) (No change.) (g) The program shall provide HIV education based on the Model Workplace Guidelines developed by the Texas Department of Health. (h) The provider shall: (1) provide access to pre-test and post-test counseling and anonymous or confidential HIV testing; and (2) ensure that testing for the etiologic agent for AIDS is not carried out unless it is accompanied by written consent and counseling that conforms to the model protocol developed by the Texas Department of Health; and (3) refer HIV positive clients to a provider of HIV early intervention services (when available). (i) (No change.) (j) The program shall refer clients to health, mental health, and ancillary services necessary to meet treatment goals and conduct follow-up. Residential programs shall ensure clients have access to appropriate health care and mental health services. (k) Programs that admit females of child-bearing age shall ensure that at least one staff person has training and/or experience in providing specialized care for substance-abusing pregnant females. In addition, the program shall: (1) adopt procedures for the care of pregnant clients that is approved by a licensed health care professional; (2) implement the procedures whenever a pregnant female is admitted; and (3) refer pregnant clients who are not receiving prenatal care to an appropriate health care provider and monitor follow-through. 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 30, 1997. TRD-9709855 Mark S. Smock Deputy for Finance Administration Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 349-6609 Special Provisions 40 TAC sec.sec.148.231-148.234 The Texas Commission on Alcohol and Drug Abuse adopts amendments to sec.sec.148.231-148.234, concerning requirements for special services. Section 148.233 is adopted with changes to the proposed text as published in the June 24, 1997, issue of the Texas Register (22 TexReg 6044). Sections 148.231, 148.232, and 148.234, are adopted without changes and will not be republished. The amendments are adopted to clarify existing requirements, apply special physical plant standards to all programs that provide structured therapeutic children's services, and broaden the correctional facilities exempt from certain licensure requirements. Section 148.233 was revised to specify that the program is responsible for providing oversight and guidance to ensure children receive appropriate care when they are supervised by clients. The provision regarding clients caring for other parents' children has also been clarified, and a cross- reference was corrected. These rules describe requirements specific to adolescents, parents and their dependent children, structured therapeutic children's services, and correctional facilities. The commission received comments from Christian Farms/Treehouse, Inc. Comment: Direct care staff should not require training if the program is licensed by the Department of Human Services. Response: Licensure from the Department of Human Services fully meets this standard. Comment: The proposed ratios for clients being responsible for children need clarification because, as stated, the facility could be out of compliance by letting a client take care of her own children. Response: The rule has revised to indicate this applies only when a client is caring for other client's children. The amendments are adopted under the Texas Health and Safety Code, Title 6, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. The code affected by the adopted rules is the Texas Health and Safety Code, Title 6, Subtitle B, 464. sec.148.233.Structured Therapeutic Children's Services. (a) General requirements. (1) The program shall ensure that children are directly supervised by parents or qualified childcare providers at all times. The program is always responsible for providing oversight and guidance to ensure children receive appropriate care when they are supervised by clients. (2) (No change.) (3) The program shall provide a variety of age-appropriate equipment, toys, and learning materials. (4) Standards protecting the health, safety, and welfare of clients apply to their children. (5) Behavior management shall be fair, reasonable, consistent, and related to the child's behavior. Physical discipline is prohibited. (b) Staffing. (1) Every program that provides structured therapeutic children's services shall have a supervisor or consultant with at least: (A) 90 contact hours of education and training in child development and/or early childhood education; and (B) (No change.) (2)-(3) (No change.) (4) When trained staff or volunteers are responsible for children, the staff-to- child ratio shall not exceed 1:4 for infants (18 months and younger) and 1:6 for toddlers and children. (5) When a client is responsible for children of other clients, the parent-to- child ratio (including the clients own children) shall not exceed 1:2 for infants (18 months and younger) and 1:4 for toddlers and children. Clients shall not supervise another parent's children without written consent from the legal guardian and staff approval. When a client supervises another parent's children, staff shall provide appropriate oversight. (c) Safety practices. (1) The emergency evacuation procedures shall include provisions for children approved by the fire marshal. (2)-(3) (No change.) (4) The program site shall meet the additional physical plant requirements listed in sec.148.232 of this title (relating to Parents and their Dependent Children). (d) Health practices. (1) The program shall obtain a consent to obtain emergency medical care for each child at admission. (2) Staff, volunteers, and parents shall use universal precautions when caring for children other than their own. (3) Staff who are supervising children shall check all diapers frequently, change without delay, and dispose of the diapers in a sealed container. (4) Children's medication shall be given according to the label by the parent, a licensed health professional, or an employee trained in self-administration of medication, and documented by a trained staff member. The facility shall obtain written consent from the parent to administer the medication, as required. If trained staff give the medication, the facility must document the circumstances or situation that prevents the parent or licensed health professional from performing the duties. The facility shall assume full responsibility for the proper administration and documentation of medication. (e) Residential Programs shall also comply with the following requirements. (1) The daily activity schedule shall include a variety of structured and unstructured age-appropriate activities. (2) School age children shall have access to school. (3) The program shall have procedures for isolating parents and children who have communicable diseases and providing them with appropriate care and supervision. (4) The program shall keep current immunization records for each child at the program site as required by the Texas Department of Health. (5) Each child shall have a medical assessment from a medical doctor, physician assistant, advanced practice nurse, or registered nurse within 96 hours of admission. Copies of an assessment performed up to seven days before admission may be used. (6) The program shall provide potty chairs for small children and sanitize them after each use. (7) The program shall provide age-appropriate bathing facilities. Infants shall not be bathed in sinks. (8) The program shall ensure that children are clean and appropriately dressed. (9) The program shall provide an adequate diet for childhood growth and development, including two snacks per day. (10) Rooms and buildings shall have at least 30 usable square feet of indoor activity space per child when occupied by children. (11) Where children share sleeping space with parents, bedrooms shall have at least 30 usable square feet per infant (in cribs) and 40 usable square feet per child. (12) Nurseries shall have 35 usable square feet per crib. (13) The program site shall have adequate outdoor play space with a safe route of access. 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 30, 1997. TRD-9709856 Mark S. Smock Deputy for Finance Administration Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 349-6609 40 TAC sec.148.236 The Texas Commission on Alcohol and Drug Abuse adopts new sec.148.236, concerning extension services, without changes to the proposed text as published in the June 24, 1997, issue of the Texas Register (22 TexReg 6047). The new section is adopted to streamline licensure procedures and allow facilities to take services to clients who cannot be effectively served at a licensed site. These rules establish standards for facilities that offer services at a site that is not owned, leased, operated, or controlled by the facility. The commission received comments from the Association of Substance Abuse Service Providers of Texas, the Serenity Foundation of Texas, Burke Center, and a number of individuals. Comment: This is a giant step in the right direction and will help us extend services to outlying counties and underserved populations. Response: The commission agrees that the procedures will allow expansion of services. The new rules are adopted under the Texas Health and Safety Code, Title 6, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. The code affected by the adopted rules is the Texas Health and Safety Code, Title 6, Subtitle B, 464. 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 30, 1997. TRD-9709845 Mark S. Smock Deputy for Finance Administration Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 349-6609 Medication 40 TAC sec.sec.148.261, 148.262, 148.267 The Texas Commission on Alcohol and Drug Abuse adopts amendments to sec.sec.148.261, 148.262, and 148.267, concerning medication, without changes to the proposed text as published in the June 24, 1997, issue of the Texas Register (22 TexReg 6047). The amendments are adopted to clarify existing requirements. These rules describe general requirements regarding medication, medication storage, and administration of prescription medication. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Health and Safety Code, Title 6, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. The code affected by the adopted rules is the Texas Health and Safety Code, Title 6, Subtitle B, 464. 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 30, 1997. TRD-9709857 Mark S. Smock Deputy for Finance Administration Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 349-6609 SUBCHAPTER E.Treatment Process Discharge 40 TAC sec.148.322, sec.148.323 The Texas Commission on Alcohol and Drug Abuse adopts amendments to sec.148.322 and sec.148.323, concerning discharges, without changes to the proposed text as published in the June 24, 1997, issue of the Texas Register (22 TexReg 6048). The amendments are adopted to clarify existing requirements. These rules describe general requirements regarding discharge plans and discharge summaries. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Health and Safety Code, Title 6, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. The code affected by the adopted rules is the Texas Health and Safety Code, Title 6, Subtitle B, 464. 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 30, 1997. TRD-9709858 Mark S. Smock Deputy for Finance Administration Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 349-6609 40 TAC sec.148.325 The Texas Commission on Alcohol and Drug Abuse adopts the repeal of sec.148.325, concerning request for discharge, without changes to the proposed text as published in the June 24, 1997, issue of the Texas Register (22 TexReg 6048). The repeal is adopted because this section is being moved to another subchapter. This section describes standards a facility must follow when a voluntary client requests discharge. No comments were received regarding adoption of the repeal. The repeal is adopted under the Texas Health and Safety Code, Title 6, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. The code affected by the repealed section is the Texas Health and Safety Code, Title 6, Subtitle B, 464. 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 30, 1997. TRD-9709840 Mark S. Smock Deputy for Finance Administration Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 349-6609 SUBCHAPTER F.Physical Plant General Physical Plant Provisions 40 TAC sec.148.331, sec.148.332 The Texas Commission on Alcohol and Drug Abuse adopts new sec.148.331 and sec.148.332, concerning building requirements that apply to all programs, without changes to the proposed text as published in the June 24, 1997, issue of the Texas Register (22 TexReg 6049). The new sections are adopted because these rules are being moved from another subchapter in the rules. These rules establish standards for the general environment and emergency evacuation. No comments were received regarding adoption of the new sections. The new rules are adopted under the Texas Health and Safety Code, Title 6, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. The code affected by the adopted rules is the Texas Health and Safety Code, Title 6, Subtitle B, 464. 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 30, 1997. TRD-9709846 Mark S. Smock Deputy for Finance Administration Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 349-6609 Special Physical Plant Requirements 40 TAC sec.148.372 The Texas Commission on Alcohol and Drug Abuse adopts the repeal of sec.148.372, concerning requirements for residential facilities, without changes to the proposed text as published in the June 24, 1997, issue of the Texas Register (22 TexReg 6050). The repeal is adopted because these rules are being incorporated into another subchapter. This section describes additional physical plant requirements for programs that provide services to children. No comments were received regarding adoption of the repeals. The repeals is adopted under the Texas Health and Safety Code, Title 6, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. The code affected by the repealed section is the Texas Health and Safety Code, Title 6, Subtitle B, 464. 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 30, 1997. TRD-9709841 Mark S. Smock Deputy for Finance Administration Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 349-6609