ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 4. AGRICULTURE PART I. Texas Department of Agriculture CHAPTER 10.Seed Certification Standards Genetic Seed Chart 4 TAC sec.10.15 The Texas Department of Agriculture (the department) and the State Seed and Plant Board (the Board) adopts amendments to sec.10.15 and sec.10.21, concerning additional requirements for the certification of certain crops under the Texas Seed and Plant Certification Act without changes to the proposed text as published in the July 15, 1997, issue of the Texas Register (22 TexReg 6510). The department is the certifying agency in the administration of the Seed and Plant Certification Act, and is charged with administering and enforcing the standards adopted by the Board. The adopted amendment to sec.10.15 clarifies the standards for genetic seed certification. The adopted amendment to sec.10.21 changes the requirements and standards for hybrid sorghum varietal purity grow- out tests, as adopted by the Board. No comments were received regarding the adoption of the amendments. However, the department has made some changes to correct typographical errors that were made in the publication of sec.10.21. The amendments are adopted under the Texas Agriculture Code, sec.62.002, which provides the State Seed and Plant Board with the authority to establish standards of genetic purity and identity as necessary for the efficient enforcement of agricultural interest and the Texas Agriculture Code sec.12.016, which provides the department with the authority to adopt rules for administration of the code. 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 September 17, 1997. TRD-9712365 Dolores Alvarado Hibbs Deputy General Counsel Texas Department of Agriculture Effective date: October 13, 1997 Proposal publication date: July 15, 1997 For further information, please call: (512) 463-7541 Additional Requirements for the Certification of Certain Crops 4 TAC sec.10.21 The amendments are adopted under the Texas Agriculture Code,sec.62.002, which provides the State Seed and Plant Board with the authority to establish standards of genetic purity and identity as necessary for the efficient enforcement of agricultural interest and the Texas Agriculture Code sec.12.016, which provides the department with the authority to adopt rules for administration of the code. 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 September 17, 1997. TRD-9712366 Dolores Alvarado Hibbs Deputy General Counsel Texas Department of Agriculture Effective date: October 13, 1997 Proposal publication date: July 15, 1997 For further information, please call: (512) 463-7541 TITLE 16. ECONOMIC REGULATION PART I. Railroad Commission of Texas CHAPTER 9.Liquefied Petroleum Gas Division The Railroad Commission of Texas adopts amendments to sec.9.183 and sec.9.251, relating to uniform protection standards, and adoption by reference of NFPA 54 and NFPA 501C, and certain other NFPA publications; and new sec.sec.9.801, 9.804, 9.807, 9.810, 9.813, and 9.816, relating to adoption by reference of NFPA 51 and certain other NFPA publications; clarification and/or exclusion of definitions in NFPA 51; exclusion of certain sections and Chapters 6, 7, and 8 in NFPA 51; sections in NFPA 51 adopted with additional or alternative language; container installation requirements; and LP-gas pressure going into a building, without changes to the versions published in the July 15, 1997, Texas Register (22 TexReg 6541). The new rules will be part of new subchapter J, entitled "Adoption by Reference of NFPA 51, Standard for the Design and Installation of Oxygen-Fuel Gas Systems for Welding, Cutting, and Allied Processes, and Other Requirements for LP-Gas Welding Applications." The Commission adopts the amendments and new sections to establish rules and procedures for LP-gas used in welding and other similar applications, an area of LP-gas use for which the Commission has not previously adopted rules. The Commission adopts the National Fire Protection Association's Standard for the Design and Installation of Oxygen-Fuel Gas Systems for Welding, Cutting, and Allied Processes (commonly referred to as "NFPA 51"), a nationally-recognized standard. The Commission adopts NFPA 51 in new sec.9.801, with certain exceptions and clarifications described in new rules sec.sec.9.804, 9.807, 9.810, 9.813, and 9.816. The adoption by reference incorporates the 1997 edition of NFPA 51. A task force appointed by the Commission and made up of members of the LP-gas industry reviewed NFPA 51 and proposed the adoption of NFPA 51 with the additional or alternative language specified in the new sections. The rulemaking has also been reviewed and approved by the Commission's LP-gas advisory committee. The Commission also adopts by reference, in sec.9.801(b), all other NFPA publications or portions of those publications referenced in NFPA 51 which apply to LP-gas welding activities only. In other words, if LP-gas welding activities are to be performed by a licensee and those activities are included in an NFPA publication referenced in NFPA 51, then the licensee shall perform those activities in compliance with the referenced document. For example, sec.1-4.2 of NFPA 51 refers to another NFPA publication, NFPA 51B, Standard for Fire Prevention in Use of Cutting and Welding Processes. Licensees shall also be required to purchase that NFPA publication and perform LP-gas activities to those standards. The Commission proposed an effective date of October 1, 1997, for the implementation of the adoption by reference. This will allow sufficient time for submission and review of comments, preparation of the rules for final adoption, development of necessary examinations, printing and distribution of new pages for the Commission rulebooks, and training of Commission staff. As of the effective date, Commission examinations and review materials will include information from NFPA 51. The adoption by reference of NFPA 51 could affect up to about 715 licensees with Category E and J licenses (about 705 Category E licensees and 10 Category J licensees) out of the estimated 2,328 total number of licensees. The number of licensees actually affected will be well below that because not all Category E or J licensees perform welding activities. An exact number cannot be determined because welding activities do not require a separate license or certificate. The amendment to sec.9.183 excludes DOT portable containers used in welding applications from the storage requirements in sec.9.183(o). The amendment will allow the continuation of the routine and common use of these containers inside buildings where welding activities occur. There are some sections in NFPA 51 for which the Commission adopts alternative or additional language, or which the Commission chooses not to adopt. In particular, new rule sec.9.804 defines the "authority having jurisdiction," a phrase used throughout NFPA publications, including NFPA 51, to be the Railroad Commission of Texas. This language identifies the Commission as the "authority having jurisdiction" because the Commission has statutory authority over LP-gas safety matters in Texas. The section also designates several definitions being amended or not adopted in order to eliminate references to acetylene and other items not applicable to LP-gas welding activities. New sec.9.807 identifies several sections or chapters in NFPA 51 which the Commission does not adopt because they refer to activities not related to LP- gas. New sec.9.810 lists sections in NFPA 51 for which the Commission adopts additional or alternative language. Because NFPA 51 covers other activities besides LP-gas welding uses, these changes are necessary to limit the requirements to areas for which the Commission has jurisdiction. The amended or additional language was approved by the Commission's LP-gas welding advisory committee, whose members regularly perform LP- gas welding activities. New sec.9.813 outlines requirements for containers used to supply LP-gas for welding activities. These requirements should ensure safety while allowing the industry to continue using these containers as it has done routinely in the past without imposing unrealistic requirements. New sec.9.816 states that LP-gas pressure going into a building shall not exceed the amount required for the application being performed. This will prevent excessive pressures from being used. The adoption by reference of NFPA 51 will necessitate some Commission rulemaking in the future. Secretary of State rules, 1 Texas Administrative Code sec.91.41 and sec.91.42, state that an adoption by reference must incorporate the document being adopted as it exists on the date of adoption. NFPA amends 51 approximately every five years, although NFPA occasionally adopts interim amendments. If NFPA changes 51 or adopts an interim amendment and the Commission wants to incorporate those changes into the requirements for Texas, then the Commission will have to re-adopt the new language or edition in order for the changes to be effective. Likewise, if NFPA changes any of the eight other NFPA documents referenced in NFPA 51, then the Commission will have to adopt the changes in those particular editions for them to become effective. If the Commission waits to re-adopt a new edition of NFPA 51, then the referenced documents that are changed between now and then will not become effective until that adoption's effective date. For this reason, new sec.9.801(b)(1)-(8) separately lists the eight pamphlets referenced in NFPA 51 and the date of the edition being adopted. If the Commission wishes to adopt different editions of any of these referenced pamphlets, then only a minor rulemaking will be necessary, and the rule will always include a list of the NFPA standards currently effective in Texas. The adoption by reference of NFPA 51 means that the Commission must provide for public viewing a complete set of NFPA 51 and all the referenced NFPA documents at both the Secretary of State's office and the Commission's Austin office. Providing copies for public viewing complies with the public information law in Texas; however, because the NFPA documents are copyrighted, copies may not be made. The Commission does not assume any responsibility or liability for the use of the NFPA documents, other than as specified in the rules. The Commission received no comments on the proposal. SUBCHAPTER B.Basic Rules 16 TAC sec.9.183 The amendments and new sections are adopted under the Texas Natural Resources Code, sec.113.051, which authorizes the Commission to adopt rules relating to any and all aspects or phases of the LP-gas industry that will protect or tend to protect the health, welfare, and safety of the general public, and sec.113.052, which allows the Commission to adopt by reference the published codes of nationally recognized societies, including the National Fire Protection Association. The Texas Natural Resources Code, sec.113.051 and sec.113.052, is affected by the amendments and new sections. 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 September 16, 1997. TRD-9712333 Mary Ross McDonald Deputy General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: October 6, 1997 Proposal publication date: July 15, 1997 For further information, please call: (512) 463-7008 SUBCHAPTER J.Adoption by Reference of NFPA 51, Standard for the Design and Installation of Oxygen-Fuel Gas Systems for Welding, Cutting, and Allied Processes, and Other Requirements for LP-Gas Welding Applications 16 TAC sec.sec.9.801, 9.804, 9.807, 9.810, 9.813, 9.816 The amendments and new sections are adopted under the Texas Natural Resources Code, sec.113.051, which authorizes the Commission to adopt rules relating to any and all aspects or phases of the LP-gas industry that will protect or tend to protect the health, welfare, and safety of the general public, and sec.113.052, which allows the Commission to adopt by reference the published codes of nationally recognized societies, including the National Fire Protection Association. The Texas Natural Resources Code, sec.113.051 and sec.113.052, is affected by the amendments and new sections. 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 September 16, 1997. TRD-9712335 Mary Ross McDonald Deputy General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: October 6, 1997 Proposal publication date: July 15, 1997 For further information, please call: (512) 463-7008 SUBCHAPTER D.Adoption by Reference of NFPA 54 (National Fuel Gas Code) and NFPA 501C (Standard on Recreational Vehicles) and Adopted Exceptions to NFPA 54 16 TAC sec.9.251 The amendments and new sections are adopted under the Texas Natural Resources Code, sec.113.051, which authorizes the Commission to adopt rules relating to any and all aspects or phases of the LP-gas industry that will protect or tend to protect the health, welfare, and safety of the general public, and sec.113.052, which allows the Commission to adopt by reference the published codes of nationally recognized societies, including the National Fire Protection Association. The Texas Natural Resources Code, sec.113.051 and sec.113.052, is affected by the amendments and new sections. 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 September 16, 1997. TRD-9712334 Mary Ross McDonald Deputy General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: October 6, 1997 Proposal publication date: July 15, 1997 For further information, please call: (512) 463-7008 SUBCHAPTER B. Basic Rules 16 TAC sec.9.184 The Railroad Commission of Texas adopts amendments to sec.9.184, relating to uniform safety requirements; sec.9.679, relating to painting; and sec.9.1764, relating to painting, without changes to the versions published in the July 15, 1997, Texas Register (22 TexReg 6543). Section 9.184 describes safety requirements for installations, including painting of containers. Section 9.679 and sec.9.1764 specify painting requirements for transport containers which comply with the United States Department of Transportation (DOT) MC-330 and MC- 331 specifications, and for transport containers which do not comply with these specifications, generally known as "nonspecification" or "nonspec" units. New language in sec.sec.9.184(a)(14), 9.679, and 9.1764 permits the painting of containers in colors other than white or aluminum provided that light or pastel colors are used. Dark, heat- absorbing colors are prohibited. DOT forklift or portable cylinders and motor or mobile fuel containers mounted on vehicles may be painted any color. The titles of sec.9.679 and sec.9.1764 are revised to be more specific. These amendments will prevent many LP-gas companies which do business in states other than Texas from having to repaint their containers just for use in Texas. The National Fire Protection Association's publication NFPA 58, Standard for the Storage and Handling of Liquefied Petroleum Gases, does not prohibit the use of any particular colors. However, because of the extremely high temperatures possible in Texas, the darker, heat- absorbing colors will be prohibited. The amendments will also allow more flexibility for an LP-gas company to use its official company colors on its LP-gas containers. The Commission received no comments on the proposal. The amendments are adopted under the Texas Natural Resources Code, sec.113.051, which authorizes the commission to adopt rules relating to any and all aspects or phases of the LP-gas industry that will protect or tend to protect the health, welfare, and safety of the general public. The Texas Natural Resources Code, sec.113.051, is affected by the amendments. 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 September 16, 1997. TRD-9712336 Mary Ross McDonald Deputy General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: October 6, 1997 Proposal publication date: July 15, 1997 For further information, please call: (512) 463-7008 SUBCHAPTER H.Nonspecification Transport Containers; Trucks Transporting LP-Gas in Portable Containers 16 TAC sec.9.679 The amendments are adopted under the Texas Natural Resources Code, sec.113.051, which authorizes the commission to adopt rules relating to any and all aspects or phases of the LP-gas industry that will protect or tend to protect the health, welfare, and safety of the general public. The Texas Natural Resources Code, sec.113.051, is affected by the amendments. 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 September 16, 1997. TRD-9712337 Mary Ross McDonald Deputy General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: October 6, 1997 Proposal publication date: July 15, 1997 For further information, please call: (512) 463-7008 SUBCHAPTER T.DOT MC-330 and MC-331 Transport Containers 16 TAC sec.9.1764 The amendments are adopted under the Texas Natural Resources Code, sec.113.051, which authorizes the commission to adopt rules relating to any and all aspects or phases of the LP-gas industry that will protect or tend to protect the health, welfare, and safety of the general public. The Texas Natural Resources Code, sec.113.051, is affected by the amendments. 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 September 16, 1997. TRD-9712338 Mary Ross McDonald Deputy General Counsel, Office of General Counsel Railroad Commission of Texas Effective date: October 6, 1997 Proposal publication date: July 15, 1997 For further information, please call: (512) 463-7008 PART II. Public Utility Commission of Texas CHAPTER 23. Substantive Rule Telephone 16 TAC sec.23.97, sec.23.106 The Public Utility Commission of Texas (PUC) adopts new sec.23.106, relating to Selection of Telecommunications Utilities, and an amendment to sec.23.97, relating to Interconnection, with changes to the proposed text as published in the July 1, 1997, issue of the Texas Register (22 TexReg 6145). The new rule implements the provisions of Texas Senate Bill 253, 75th Legislature, Regular Session (1997), which sets out the manner in which a telecommunications utility is permitted to switch a customer from one telecommunications utility to another in the state of Texas. The amendment to sec.23.97 removes references to the "Secretary of the Commission" in subsection (h), and amends subsection (i), relating to Customer Safeguards by replacing the requirements of paragraph (1), relating to the requirements for provision of service to customers, with a reference to the requirements of the proposed new sec.23.106. A public hearing on the rule was held at commission offices on July 15, 1997, at 10:00 a.m. Representatives from AT&T Communications of the Southwest, Inc. (AT&T), Brittan Communications International Corporation (BCI), Consumers Union (CU), GTE Southwest, Inc. (GTE), Office of Public Utility Counsel (OPC), Southwestern Bell Telephone Company (SWBT), United Telephone Company of Texas, Inc., Central Telephone Company of Texas, and Sprint Communications Company L.P. (Sprint), Texas Association of Long Distance Telephone Companies (TEXALTEL), Texas Statewide Telephone Cooperative, Inc. (TSTCI), and Texas Telephone Association (TTA) attended the hearing. To the extent the participants attended the hearing and made comments on the record, their comments are summarized herein. To the extent the participants attended the hearing, and filed written comments, the participants' statements largely reflect their written comments and are summarized herein. The commission received written comments on the proposed rule from AT&T, BCI, CU, GTE, Long Distance International, Inc. (LDI), MCI Telecommunications Corporation (MCI), OPC, SWBT, Sprint, TEXALTEL, Telecommunication Resellers Association (TRA), TSTCI, and TTA. The commission also received written reply comments from AT&T, CU, LCI International Telecom Corp. (LCI), OPC, SWBT, TEXALTEL, and TSTCI. The commission did not receive comments or reply comments on the amendment to sec.23.97. The commission invited specific comments regarding the costs associated with, and benefits that will be gained by, implementation of the new rule and/or the amendment. The commission further requested specific comment regarding subsection (g)(1)(B), relating to the responsibility of a telecommunications utility that originated an unauthorized change to pay all "usual and customary charges" associated with returning the customer to the original telecommunications utility; in particular, what amount is "usual and customary" with respect to such charges, and is this language sufficient to assure that the customer whose service provider was changed without authorization does not bear any monetary costs associated with switching back to the original provider. Additionally, the commission invited specific comments regarding how the federal Telecommunications Act of 1996 impacts this rule and/or the amendment. The commission notes that it did not receive specific comments or reply comments on the issue of "usual and customary charges." BCI, CU, OPC, TEXALTEL, TRA, and TSTCI stated in their comments that they generally support the rule as proposed, although each suggested certain changes to the rule. Sprint also generally supported the proposed rule, but recommended a four to six month implementation window. GTE, however, stated that it does not endorse the proposed rule because the Federal Communications Commission (FCC) is currently addressing the same issues in its rulemaking in CC Docket Number 94- 129 (Implementation of the Subscriber Carrier Selection Changes Provisions of the Telecommunications Act of 1996, Policies and Rules Concerning Unauthorized Changes of Consumers' Long Distance Carriers, CC Docket Number 94-129, Further Notice of Proposed Rulemaking and Memorandum Opinion and Order on Reconsideration, FCC 97-248, (released July 15, 1997)). GTE recommended the commission delay its rulemaking until the FCC has completed its investigation and established a record in CC Docket Number 94-129 which can be incorporated in the commission's rulemaking. LDI also suggested the commission delay implementation of the proposed rule until after the FCC has completed its rulemaking on this matter. AT&T and LCI recommended that the commission adopt a limited interim rule until the FCC completes its rulemaking in CC Docket Number 94-129. The commission disagrees with the recommendations that it adopt an interim rule or delay the implementation of the proposed rule until after the FCC adopts a new rule. Senate Bill 253 requires the commission to adopt nondiscriminatory and competitively neutral rules no later than November 1, 1997. Pursuant to this mandate, the commission intends to proceed without delay to adopt a proposed rule that is consistent with the Public Utility and Regulatory Act (PURA), S.B. 253, and the current FCC rules on unauthorized changes in customers' carrier selections ("slamming"). The commission does recognize that the FCC, in CC Docket Number 94-129, has proposed changes to its current slamming rules. However, the FCC did not publish its Proposed Rulemaking until after the commission had published proposed rule sec.23.106. Some of the issues raised in the Proposed Rulemaking were not specifically addressed in the commission's proposed rule. For the issues that were addressed in the proposed rule, S.B. 253 requires alternate procedures from those proposed by the FCC. Consequently, the commission believes the most appropriate course of action is to proceed to adoption in this current rulemaking without incorporating additional provisions which address issues raised by the FCC. This will ensure that customers receive the protection of a commission rule on slamming, while allowing the commission additional time to conduct a thorough review of the FCC's proposed rules. The additional time will also allow interested parties to submit specific comments on the issues. In the Memorandum Opinion and Order on Reconsideration in CC Docket Number 94- 129, the FCC adopted three amendments to its rules regarding the unauthorized switching of subscribers' primary interexchange carriers (IXCs) which modify: (1) 47 C.F.R. sec.64.1150(g) to require that IXCs using Letters of Agency (LOAs) must fully translate their LOAs into the same language as any associated promotional materials or oral descriptions and instructions; (2) 47 C.F.R. sec.64.1150(e)(4) to incorporate the terms "interLATA" and "intraLATA," as well as "interstate" and "intrastate," to remove confusion over the scope of the rules; and (3) 47 C.F.R. sec.64.1100(a) to clarify that carriers must confirm orders for long distance service generated by telemarketing using only one of the four verification options. To be consistent with the FCC amendments, the commission has modified sec.23.106(e)(5) to require that all materials associated with LOAs be translated into the same language as the LOA. The proposed rule already conforms with the other two FCC amendments. In addition, the FCC has proposed several amendments to its rules to further eliminate slamming: (1) addition of 47 C.F.R. sec.64.1160(a)(2) providing that the executing carrier will be solely liable for violations whenever the submitting carrier has complied with the rule; (2) addition of 47 C.F.R. sec.64.1160(b) requiring any carrier that violates the verification procedures to remit all revenues and the value of any premiums to the properly authorized carrier; (3) addition of 47 C.F.R. sec.64.1170(c) requiring that, upon receipt of the value of premiums from the unauthorized carrier, the authorized carrier must provide to the subscriber the premiums to which the subscriber would have been entitled; (4) addition of 47 C.F.R. sec.64.1170(d) requiring carriers to pursue private negotiations before petitioning the FCC to make a determination in disputes regarding the liability provisions; and (5) replacement of the term "customer" with "subscriber" in 47 C.F.R. sec.64.1100 to be consistent with the federal Telecommunications Act of 1996, sec.258, 47 U.S.C.A. sec.153 (West Supp. 1997)(FTA96). Finally, the FCC seeks comment on a number of other issues related to slamming including: (1) whether the "welcome package" should be eliminated as a verification option; (2) whether the duties of the executing and submitting carriers should be delineated; (3) whether verification rules should apply to in-bound calls; (4) whether slammed customers should be liable for any unpaid charges assessed by unauthorized carriers; (5) whether verification procedures should apply to preferred carrier freeze solicitations; and (6) when a resale carrier must notify a consumer that the underlying network provider has changed. AT&T, CU, LCI, OPC, SWBT, TEXALTEL, and TSTCI all commented on the proposed definitions of "carrier-initiated change" and "customer-initiated change" in proposed sec.23.106(c)(2) and (3). Several parties expressed concern that the practical effect of the proposed language would be to define all calls as carrier-initiated. SWBT stated in its comments that the definitions of carrier- initiated and customer-initiated changes are overly broad and unworkable and suggested language that would limit carrier-initiated changes to changes resulting from direct mail solicitation or telemarketing. The commission believes SWBT's language is underinclusive in its definition of carrier- initiated changes and would fail to cover all instances of carrier- initiated changes. TEXALTEL likewise submitted alternative definitions which the commission finds unworkable because they are underinclusive in their definition of carrier-initiated changes. In its comments, AT&T noted that the use of the term "print advertising" in proposed sec.23.106(c)(2) and (3) introduces substantial ambiguity into the definition and suggested that it be removed since the remaining reference to "other actions initiated by carriers" will be sufficiently broad to cover print advertising which contains letters of authorization or other vehicles which could be considered to result in carrier- initiated changes. CU and OPC support AT&T's proposed change. The commission agrees with AT&T, CU and OPC, and has amended the definitions to exclude "print advertising." The commission does so to avoid interpretations of "print advertising" that can be overinclusive and have the practical effect of rendering nearly every change a carrier-initiated change. However, print advertising which contains LOAs or other vehicles which could be considered to result in carrier-initiated changes is still encompassed by the phrase "other actions initiated by carriers" and will be considered by the commission to be carrier-initiated. The commission further notes that the FCC is addressing the issue of the applicability of the verification procedures to inbound calls in CC Docket Number 94-129; if the FCC amends its rules so that verification procedures apply to inbound calls, the distinction between carrier-initiated and customer-initiated changes will then be moot. The commission believes this issue should be addressed further after the FCC finalizes its decision. Both SWBT and TEXALTEL commented that the definition of local calling area is unnecessary and should be deleted. The commission notes that sec.23.106(d)(4)(vi) refers to "calling areas," and has amended the definition in sec.23.106(c) to define a "calling area" rather than a "local calling area." Nearly all parties commented either generally or specifically about the provisions of sec.23.106(d) relating to carrier-initiated changes and verification procedures. OPC requested access to the records of all carrier- initiated changes upon request. CU commented that both the Attorney General and OPC should have access to the verification information maintained under sec.23.106(d) because they represent consumers. The commission first notes that S.B. 253 did not include provisions for such access to the information maintained pursuant to the rule. The commission does not have the authority under S.B. 253 or PURA to grant a third party, including OPC or the Attorney General, access to private customer verification records maintained by telecommunications utilities. The commission further notes that OPC and the Attorney General, as representatives of consumers, have an alternative route for access to the verification information. OPC and the Attorney General can obtain access to records via the consumers they represent. Under the rule, a customer can request from the carrier access to the verification information. SWBT objected to the reference to carrier-initiated change by "written solicitation" in sec.23.106(d). As explained above, the commission believes carrier-initiated changes include changes resulting from direct mail solicitation, as well as print advertising which contains LOAs or other vehicles which could be considered to result in carrier-initiated changes. Therefore, the commission believes the term "written solicitation" is appropriate. TSTCI suggested that the carrier initiating the change should be required to submit the verification to the carrier who will be responsible for changing the customer's service. The commission notes that the FCC is currently addressing the issue of the duties of the executing and submitting carriers in its rulemaking; the commission believes this matter should be addressed after the FCC makes its decision. TTA commented that sec.23.106(d) should be redrafted to specify that the carrier must tender only those carrier records relevant to a customer's challenge rather than records for an entire twelve-month period. The commission disagrees, and believes that the proposed language already addresses TTA's concerns. BCI commented that the rules should impose even stricter standards for the verification of telemarketing sales. BCI suggested that for telemarketing sales, the commission eliminate two of the four methods of verification of carrier- initiated change orders permitted under sec.23.106(d): sec.23.106(d)(2), verification by electronic authorization; and (d)(4), verification by information package. The commission disagrees. Senate Bill 253 expressly states that the four types of verification in sec.23.106(d) are acceptable. Further, sec.23.106(d) is consistent with current FCC rules, which also expressly allow for each of the four methods. BCI also suggested that sec.23.106(d)(2)(B) be modified to address situations where telecommunications networks lack the technical ability to forward automatic number identifier (ANI) information. The commission agrees that some switches in Texas may not have the capability to forward ANI information as is required to use the electronic authorization method. The commission accordingly has amended its rule to state that the electronic authorization method is not an available verification option in exchanges where automatic recording of the ANI from the local switching system is not technically possible. BCI also suggested that sec.23.106(d)(3) be amended to require verification of ANI under the third party verification option. The commission disagrees. Under the proposed rule and the FCC rule, independent third party verification requires that the customer give appropriate verification data. In addition, sec.23.106(d)(3) states that third parties must be independent, appropriately qualified, and in a physically separate location. This language addresses BCI's concerns of unscrupulous behavior. The commission also notes that ANI information is not required under S.B. 253 or the FCC rules for third party verification. TRA commented that the notice requirements in sec.23.106(d)(4)(A)(iv), (vi), (vii), and (xii) exceed the FCC rule requirements and will raise the costs of using information package verification procedures, which must be created specifically for Texas customers, and will discourage providers from using the information package verification option. The commission first notes that the state-specific information in sec.23.106(d)(4)(A)(xii) parallels the federal information required in FCC rule sec.64.1100(d)(9) and therefore does not impose unreasonable costs on the procedure. Further, the commission disagrees with TRA that the requirements in sec.23.106(d)(4)(A)(iv), (vi), and (vii) will significantly raise costs of verification by this method. sec.23.106(d)(4)(A)(iv) and (vii) merely require a carrier to tell the customer what telephone number(s) and type(s) of service (e.g., local or interLATA long distance) are being changed. sec.23.106(d)(4)(A)(vi) contains the same requirement carriers are already required to follow under current commission rules in sec.23.97(i)(1)(C)(iv)(IV), (V) and (VI) for LOAs. The only difference is the addition of a requirement in sec.23.106(d)(4)(A)(vi) that the actual amount of the switch charge be stated. The commission agrees with the comments of TRA and others that the requirement to state the exact amount of the charge should be amended to require a more general statement. The commission believes, however, that consumers should be provided with at least an approximate amount of the charge, based on the industry average charge in Texas. The commission has amended sec.23.106(d)(4)(A)(vi) to state: "I understand that I must pay a charge of approximately $ (industry average charge) to switch providers. If I later wish to return to my current telephone company, I may be required to pay a reconnection charge to that company." Sprint stated in its comments that sec.23.106(d)(4) requires Texas-specific information to be included in the mailing, which is inconsistent with federal rules and will require changes to the current process. In particular, Sprint objected to sec.23.106(d)(4)(A)(v) as very cumbersome and requiring system changes which could prove to be prohibitively expensive. The commission notes that sec.23.106(d)(4)(A)(v) parallels FCC rule sec.64.1100(d)(4), exactly. Sprint further noted that it does not currently have the ability to send the name of the person ordering the change as proposed in sec.23.106(d)(4)(A)(viii) and currently sends the information to the person as it appears on the local phone account. The commission finds this comment confusing. Under commission rules, for a carrier-initiated change, a carrier must obtain authorization and verification from the actual subscriber to the line. No person other than the telephone subscriber has the authority to make a change in service. Finally, Sprint notes that sec.23.106(d)(4)(A)(vi) will require knowledge of the amount of the primary interexchange carrier (PIC) change charge for the specific LEC serving a specific customer which is very burdensome. The commission agrees and has amended the language as discussed above. TEXALTEL also recommended changes to sec.23.106(d)(4)(A)(i), (ii), (v) and (vi). The commission notes that sec.23.106(d)(4)(A)(i), (ii), (v) parallel FCC rule sec.64.1100(d)(1), (2) and (4) exactly. The commission has amended sec.23.106(d)(4)(A)(vi) to require that the industry average charge rather than the exact charge for a specific LEC be provided. TEXALTEL and LCI commented that the language in sec.23.106(d)(4)(B) is unwieldy and recommended making the language more consistent with the FCC's language. In its comments, OPC noted there seems to be some type of grammatical problem with paragraph (4)(A) and (B) that leads to confusion regarding the verification requirements. OPC suggests that paragraph (4) be changed as follows: ". . . subparagraph (A) and the customer does not cancel service after receiving the notification pursuant to subparagraph (B)." The commission agrees to the clarification suggested by OPC and has amended the rule accordingly. Several parties commented that the state-specific requirements of sec.23.106(e)(3)(A) and (B) serve to raise providers' operating costs and reduce the desirability of LOAs as an effective verification option. The commission agrees with the comments to the extent that the requirement to state the exact amount of the switchover charge be deleted. As now required in sec.23.106(d)(4)(A)(vi), the commission has amended sec.23.106(e)(3)(A) to state: "I understand that I must pay a charge of approximately $ (industry average charge) to switch providers." The commission has also amended sec.23.106(e)(3)(B)(iii) to delete the requirement to specify the exact amount of the charge and instead to require that the industry average charge be stated. The commission disagrees with the comments that the rule should not incorporate the actual text of the LOA. The commission believes this measure prevents any misunderstanding as to the requirements of the rule, and notes that the proposed text is consistent with FCC rules. In its comments, TEXALTEL noted LOA forms must be separate or separable from promotional material, but has observed that some contest entry forms make it impossible to enter the contest without submitting the LOA form. TEXALTEL suggests the rules require that contest entry forms and LOA forms also be separate or separable. The commission notes that the rule already requires LOA forms be separate or separable and not combined with inducements of any kind (e.g., contest entry forms), except that LOAs may be combined with checks which meet the requirements of the rule. The commission therefore believes any contest entry forms that require the submission of the LOA form to enter the contest are in violation of sec.23.106. GTE recommended that the proposed rule language be modified to address "PIC change freeze" verifications in addition to "PIC change" verifications, and recommended adding subsection sec.23.106(e)(4)(A): "An LOA format shall be used for a customer to take action in order to freeze a current telecommunications utility, such freeze can be changed only through the execution of a subsequent LOA by the consumer." TEXALTEL supported GTE's suggestion. The commission notes that S.B. 253 did not address preferred carrier (PC) freezes, but the FCC rulemaking on slamming does address whether verification procedures should apply to PC freeze solicitations. The commission therefore disagrees with GTE and TEXALTEL that PC freeze provisions should be added at this time. OPC recommended adding the term "nonpublic" to define "customer specific" information in sec.23.106(f) so that it conforms with S.B. 253. CU also noted the proposed rule fails to include the term "nonpublic." CU argued that, while social security numbers and drivers license numbers may be customer specific, such public information can be used by companies engaged in fraud to falsely prove that a customer initiated a change which in fact was unauthorized. CU recommended the commission establish some boundaries to help ensure carriers use truly nonpublic information as verification. SWBT also agreed that the term "nonpublic" should modify "customer specific" information. The commission agrees that the term "nonpublic" should be added to sec.23.106(f) so that it conforms with S.B. 253 and helps to ensure that fraudulent verifications are not made using publicly accessible customer specific information as verification. The commission declines to define "nonpublic" information at this time, but is willing to consider the issue at the time it addresses the anticipated changes to the FCC rules. SWBT recommended a 90 day statute of limitations for consumers to make a claim that an unauthorized change occurred. MCI suggested that an unauthorized change must be reported by the customer to the carrier initiating the change before the customer pays the second bill for services by that carrier. AT&T also supported a statute of limitations. OPC and CU argued strongly against inserting a statute of limitations. OPC stated that the provisions of S.B. 253 already address any utility concerns that customers may attempt to "game the system" by delaying the reporting of slamming violations. The commission disagrees with the recommendations that a statute of limitations should be inserted into the rule. The commission believes the proposed rule does not benefit the customer who delays a report of slamming in order to "game the system." After the commission has the opportunity to gain further experience with the rule, the issue may be reconsidered. TSTCI requested subsection sec.23.106(g)(1) be revised to more clearly state which telecommunications utility is responsible under what circumstance for reconnection, billing and payment obligations. The commission notes that this issue is being addressed in the FCC proceeding, and the commission will therefore address the issue of more specific delineation of utility obligations after the FCC's decision. More specifically, TSTCI also commented that the slamming carrier (an IXC) does not have the ability to return the customer to his original IXC. TEXALTEL also stated sec.23.106(g)(1)(A) will require industry cooperation and noted that in some cases, only the original carrier can reconnect the slammed customer, especially in the case of facilities-based local competitors, and that the offending carrier can notify the original carrier but cannot accomplish the reconnection. AT&T noted that this section imposes an obligation that the carrier may not have the physical capability of fulfilling, and suggested that it be modified to read that the slamming carrier will take all steps within its control to accomplish the switch over within the required period. SWBT noted that systems do not exist for a telecommunications utility to transfer a customer to a different telecommunications utility, and suggested the rule require the slamming company to return the customer to the original utility "where technically feasible" and to direct the customer to the local exchange company (LEC) or the original utility where systems do not permit the slammer to make the change. Because the telecommunication utility that initiated the unauthorized change may not have the physical capability to return a customer to his original carrier, the commission has amended sec.23.106(g)(1)(A) to require the utility that made the unauthorized change to return the customer to the original utility where technically feasible within three business days of the customer's request, and if not feasible, to take all action within the utility's control to return the customer to the original utility within the required time period. TEXALTEL suggested sec.23.106(g)(1)(B) be modified to require "prompt" payment and noted that in traditional unauthorized PIC changes, the LEC would bill the IXC for the unauthorized changes and the IXC would pay within the normal payment cycle. TEXALTEL further noted this was the best treatment for the customer, as the changes are handled among the carriers. Finally, TEXALTEL believed it is unreasonable to require that the offending carrier submit payment before receipt of billing and that 20-30 days is reasonable to allow time for normal issuance of checks and mailing time. MCI stated that requiring payment to another carrier within three days is unnecessary, burdensome, and does not affect the end-use customer. Further, MCI suggested the phrase "within three business days of the customer's request" be deleted, and noted the time frames for providing billing records, reimbursing the original carrier and reimbursing customers for excessive charges dated from the customer's request are simply unworkable. Finally, MCI recommended that utilities provide billing records within 30 business days after having received payment for the entire final amount due, and that reimbursements to utilities and carriers occur within 45 business days after receipt of such final payment. SWBT recommended that the rule be changed to permit the required actions on billing and payments in sec.23.106(g)(1)(B)- (E) to occur within a "reasonable time." LDI commented that the recommended timeframes in sec.23.106(g)(1)(C)-(E) were unworkable. LDI suggested a generic time period of "up to three months" to allow all parties to obtain the information required to resolve the customer's complaint. TSTCI stated that the language in sec.23.106(g)(1)(B) should clearly reflect that the slamming carrier should be responsible for (1) the refund of any charges to the customer that resulted from the unauthorized switch, and (2) the payment of charges to the telecommunications utility responsible for switching the customer back to his original provider. TSTCI further stated the proposed rule should more specifically address the slamming carrier's responsibility for refunding the exact charges (i.e., the PC change charge) associated with the unauthorized carrier change to the customer and the original telecommunications utility. The commission is persuaded by the comments of various parties that additional time is necessary to comply with the billing and payment obligations under the rule. The commission has amended sec.23.106(g)(1)(B) to provide the unauthorized carrier with five business days to pay all usual and customary charges associated with returning the customer to the original utility. This amount of time is consistent with commission rule sec.23.61(e)(2) relating to the time period for installation of service. Payment for reconnection within five days will ensure that reconnection of the customer is not delayed. TEXALTEL commented that sec.23.106(g)(1)(C) requires provision of more data than is needed. TEXALTEL suggested billing records be provided upon request of the consumer or the original telecommunications utility where necessary to effect restoral of frequent flyer miles, etc. Sprint stated the seven day requirement creates an extreme hardship for telecommunications utilities, and noted a timing problem is also created because of the separate, interdependent timing requirements in subsection (g)(1)(C), (2)(A), and (1)(D) and (E). Sprint suggested the timing requirements be expanded consistent with all the provisions of the rule and noted a 45 day period to clear up all issues is adequate. Further, Sprint noted that the customer payment process could take a month and would then clearly be out of line with the 10 day requirement. Thus, Sprint suggested it may be appropriate to have two procedures -- one for those customers who have paid the slamming company and one for those who have not. Sprint believed that if the bill has not been paid, the billing/receivable could be credited off the slamming carrier's records and transferred to the original carrier's records for its billing and collection at its own rates. TSTCI stated the slamming carrier should be required to provide billing records to the original telecommunications utility within five business days since the utility providing the information is not performing any analysis but simply forwarding billing records. TSTCI also recommended that the original telecommunications utility be given five business days, instead of three business days, following the receipt of billing records, to provide the required information to the other telecommunications utility. Further, TSTCI suggested the commission consider revisions to sec.23.106(g)(1)(D) and (E) to indicate that refunds to the original telecommunications utility and customers would be returned within fifteen working days. The commission is persuaded by the comments that the time periods established under sec.23.106(g)(1)(C)-(E) and sec.23.106(g)(2)(A) should be expanded. Accordingly, the commission has amended sec.23.106(g)(1)(C) to allow 10 days; (D) and (E) to allow 30 days; and sec.23.106(g)(2)(A) to allow 10 days after receipt of the billing records. The commission believes that 30 business days is sufficient time to complete the process and for an unauthorized carrier to pay the original utility and the customer. TEXALTEL noted the FCC rules require that all amounts collected by the offending carrier are to be paid to the original carrier. TEXALTEL argued that the commission's proposed sec.23.106(g) is therefore preempted and unlawful. The commission disagrees. TEXALTEL referred to proposed FCC rules, not current FCC rules. Further, the remedies provided under sec.258 of the FTA96 are in addition to any other remedies available by law. The commission therefore notes that S.B. 253 requires an unauthorized carrier to pay any excess charges to the customer. This bifurcated procedure which refunds excess charges directly to the customer is more pro-consumer than a requirement that the unauthorized carrier remit all charges received to the properly authorized carrier. While the FTA96 does not incorporate a procedure for direct remittance to the customer, the broader pro- consumer provisions of the commission rule provide additional protections to the customer without being preempted by the FTA96 or any FCC rule enforcing the FTA96 provisions. The FCC cannot preempt or affect these additional customer rights under state law. For sec.23.106(g)(2)(B), OPC and CU requested that the phrase "all benefits associated with the service(s)" be explained. Noting that the wording in this subsection leaves the impression that the customer receives the "customer benefits" (e.g., frequent flyer miles) only for service prior to the unauthorized change, CU proposed the following language: "(B) provide to the customer all benefits associated with the service that would have been awarded had the unauthorized change not occurred." The commission agrees with the recommendations of OPC and CU and has amended sec.23.106(g)(2)(B) to reflect the requests. MCI commented that maintenance of unauthorized change records pursuant to sec.23.106(g)(2)(C) is costly and unnecessary. MCI further noted the commission, on its own motion, can pursue compliance and enforcement of its rules on a case-by-case basis based upon the complaints it receives. Thus, MCI suggested that if the commission finds that a telecommunications utility has repeatedly engaged in violations of the rules, it could, as part of its sanctions, require the offending utility to begin to maintain such records as a condition to continue to operate. The commission disagrees. The records maintained pursuant to this section will provide a valuable tool for the commission in its enforcement of slamming prohibitions. Commenting on sec.23.106(h)(1), TRA suggested that instead of requiring providers to give notice in both English and Spanish, the commission should allow providers to give notice in the same language that the company used to market its services. LDI applauded the commission's customer education efforts but noted that many carriers do not have a physical address in the state of Texas and suggested that the distinction be made clear that this requirement is intended for local exchange companies (LECs) and the carrier selection process associated with choosing a LEC. MCI noted that this proposed subsection would require no less than 15 notices annually to customers regarding their rights relative to unauthorized changes (assuming the customer receives one bill for their combined local and long distance services). MCI believed that the notices by separate, annual mailings and via each and every bill are unnecessary, duplicative, and costly, and should be deleted from the rule. TEXALTEL believed the notice requirements in this subsection are extremely excessive and will cause the industry to incur extraordinary expenses that are not necessary and are not in the public interest. TEXALTEL suggested the rules leave to the discretion of the telecommunications utility whether to provide the notice in both languages or to provide the notice in English but state in Spanish that a Spanish version is available on request, and provide the necessary phone number and address to make the request. TEXALTEL also stated that it does not believe the commission wants to deal with requests from 900 or so non-dominant carriers for exemption from the Spanish requirements nor is it efficient for the carriers to be required to go to this effort for an exemption for which they are all expected to qualify. TEXALTEL further believed the requirement for a direct mailing is also unnecessary and imprudent, and suggests a very simplified notice be given to consumers upon adoption of the rule by inclusion in telephone directories. TEXALTEL stated that it sees no reason for the IXC to have to send a duplicate notice and notes this would be tremendously burdensome because IXCs that rely on LEC billing and collection often do not know who their customers are and do not have the information available to them to comply with the notice requirement. TEXALTEL pointed out that the requirement that the first notice be completed by the sooner of September 30, 1997 or the effective date of the rule is impossible and suggests that if any notice is to be required, it be 90 days after adoption of the rule. Further, TEXALTEL noted that if the commission insists on bilingual notices, then publication of the first notice should be one year after adoption of the rule to allow time for a large number of exemption requests to be filed and processed by the commission. Finally, TEXALTEL believed the requirement to list a physical address where bills can be paid is unreasonable since it has nothing to do with slamming. TEXALTEL noted the commission has no jurisdiction to require that non-dominant carriers implement this requirement, and suggests this requirement be dropped and dealt with in the context of billing rules if it is found to be a problem. SWBT stated the physical address requirement in sec.23.106(h)(2) is unnecessary for a slamming rule because where a customer can pay bills is not relevant to implement slamming prohibitions, and recommended deletion of this requirement. Further, SWBT noted that the requirement in sec.23.106(h)(3) may not be the most efficacious method as current systems may only accept changes from the receiving carrier. SWBT recommended the notice should advise the customer to contact the original company selected by the customer. SWBT also objected to the mailing of a separate notice. SWBT noted the language in S.B. 253 suggests it was the intention of the Legislature that if a notice needed to be sent, it was at the commission's expense, not that of telecommunications utilities. SWBT further noted that a bill insert notice, sent once, and funded by the commission, will be adequate and thereafter new customers can be informed of their rights under the rules by the utility selected. SWBT proposed the language of the rule require the notice (if it must be sent at all) to be sent by November 1 or 30 days after adoption of the rule, whichever comes later. Finally, SWBT stated the requirement in sec.23.106(h)(4)(B) to include the notice in directories imposes a continuing expense which outweighs its value. SWBT further noted this requirement is inconsistent with S.B. 253 which requires the commission's rules be competitively neutral and that the commission, not utilities, is charged with the notice obligation. TSTCI stated that a separate mailing is not required or necessary, and noted that this is a more costly method of notice distribution than mailing a bill insert. TSTCI stated the legislation requiring the commission to implement this proposed rule gave the direction that the "Commission may notify customers of their rights under these rules." Therefore, TSTCI suggested the commission consider making the notice a part of the "Your Rights As A Customer" information ILECs are required to provide to customers or publish in their directories. TTA believed the requirement for billing addresses in sec.23.106(h)(2) may impose an undue financial burden on telecommunications utilities, particularly the ILECs, and suggested the language be amended to require that the notice provide that bill payment locations would be available upon request. In its comments of sec.23.106(h)(4), TRA noted the commission should not require providers to list a physical address where customers can pay bills since many smaller providers, including IXC resellers, will likely not maintain local offices within the state. TRA further noted that the requirement that providers list their name and an address and toll-free telephone number at which they can be reached should be sufficient to satisfy customer inquiries. Therefore, TRA suggested the proposed section be amended to allow providers to send notice only when initiating service or when customers request such information. TRA opined the separate mailing requirement is duplicative and will only serve to raise providers' costs without benefiting the public with new or "hard-to-find" information. TTA believed the requirement in this subsection would impose costs that far exceed the benefits to be gained in terms of customer education, and suggested the commission allow telecommunications utilities to choose to provide the required notice of customer rights as a bill insert or separate mailing. TTA recommended that the notice deadline of September 1 or sooner be amended to provide more time for compliance by companies to reach their entire customer base, and that the deadline be modified to allow for the notice to be compatible with existing billing cycles. GTE noted in its comments that sec.23.106(h)(4)(A) would place an unfair financial burden on the LEC industry. GTE proposed the elimination of language in this subsection that refers to notice "by separate mailing." AT&T commented that the annual notice requirement in this subsection will impose an incredibly expensive obligation that will result in multiple, redundant notices to the same customers. AT&T noted the requirement is inconsistent with S.B. 253 since this section directs that the commission, not the carriers, may notify customers of their rights. Further, AT&T noted that notice of consumer rights is legitimately considered part of the enforcement function and would be subject to funding by administrative penalties. OPC supported notice by separate mailing, and suggested the commission include a waiver provision that would allow notice by bill insert for utilities that can establish good cause for the waiver. The commission first notes that S.B. 253 grants to the commission the authority to implement slamming rules that apply to non-dominant carriers as well as dominant carriers. The commission further notes that the Spanish language requirements in sec.23.106(h)(1) are consistent with those in commission rule sec.23.61, relating to the information package "Your Rights as a Customer." Because not all carriers may have a physical location to pay bills within Texas, the commission has amended sec.23.106(h)(2) to delete this requirement. The commission was persuaded that the separate mailing and annual notice provisions were unnecessary and has deleted the requirement under sec.23.106(h)(4)(A) that notice be made by separate mailing, and that an annual notice be made. The commission has also amended sec.23.106(h)(4)(A) to remove the requirement that notice be sent by September 1, 1997, leaving the requirement that notice be sent within 30 days of the effective date of this section. In its comments on proposed sec.23.106(h)(2)and (3), CU recommended the commission include in the requirements of the notice the hours the telecommunications utility has staff available to answer customer complaints and the commission's phone number for handling complaints. The commission disagrees and has amended these sections as discussed above. Further, CU recommended the term "benefits" be defined or elaborated upon and suggests the following language: "Benefits" are additional products or services (such as frequent flyer miles) offered to customers for subscribing to a carrier's telecommunications service." The commission agrees and has amended the notice. TSTCI noted the proposed "Customer Notice" was inadvertently omitted from proposed sec.23.106(h)(3) as published in the Texas Register. The commission notes that the proposed customer notice was published as Figure 2: 16 TAC sec.23.106(h)(3) at 22 TexReg 6192. TSTCI believed the revisions to the notice which reference "phone company/phone provider" may serve only to confuse the customer. TSTCI strongly suggested the commission revisit the customer notice and more clearly indicate the "provider" (i.e., local or long distance) who is responsible for taking action to correct the unauthorized change. The commission disagrees. The language of the notice was deliberately crafted to be more accessible and easily understandable to customers. OPC suggested the proposed subsection sec.23.106(i) track the legislation exactly. OPC further suggested the commission should not try to characterize in the rule itself what behavior will be considered "repeated" violations and what behavior will constitute "repeated and reckless" violations. Finally, OPC believed the commission will want to retain the most discretion possible to analyze on a case-by-case basis the various factors which will obviously influence the imposition of penalties on companies. SWBT noted sec.23.106(i)(4) allows a finding of recklessness upon the existence of two incidents and recommends this subsection be modified as well. Sprint believed the ambiguousness of subsection sec.23.106(i)(3) and (4) could lead to improper results. Therefore, Sprint suggested a more objective standard be set. Further, Sprint recommended the commission conduct a workshop to more clearly understand the systems impact of this rule and allow for additional time (four to six months) to implement this rule. SWBT recommended that the commission adopt a rule which takes into account the relative size (by number of customers) of the telecommunications utility before penalties are imposed (more fair and avoids liability where there is simply a misunderstanding with as few as two customers.) MCI believed this subsection raises a number of due process concerns. MCI suggested the rule be revised to state at both paragraphs (1) and (2) "Upon a commission staff request of any records pursuant to this paragraph, the commission staff shall notify the utility in writing, of all reason(s) that have prompted the commission's request." In addition, MCI requested that paragraphs (1) and (2) be revised to state that the request by commission staff must be written and must be directed to the attention of the utility's legal/regulatory department. Further MCI believed paragraphs (3) and (4) fail to expressly state that the utility is entitled to hearing and recommends the following revision to both paragraphs: "If the commission finds, after a hearing on the occurrence of the violation, that a telecommunications utility. . . ." MCI argued paragraphs (3) and (4) violate PURA and that Section 1.3215(e) imposes the burden of proof on the utility that the alleged violation was accidental or inadvertent. MCI stated such burden is appropriate as accidents or inadvertent incidents can happen within 30 day periods. MCI stated that the proposed language denies the utility due process and by operation of law converts that possible accidental or inadvertent unauthorized change into a violation subject to administrative penalty and recommended deletion of the accidental/inadvertent language. MCI further noted paragraph (4) raises the same concern, and recommended the accidental/inadvertent language be deleted. TEXALTEL stated the requirements in sec.23.106(i)(1)-(4) appear to imply that three incidents of slamming within 30 days will not be deemed "accidental or inadvertent" and suggests severe sanctions should be automatic. TEXALTEL further suggested that the next to the last sentence in (3) be stricken and if enforcement situations arise, the commission look at specific facts and exercise its judgment. OPC noted the enabling legislation makes no reference to slamming incidents that will be "deemed accidental or inadvertent." OPC supported the intent behind the language in sec.23.106(i)(3), but believes the characterization of incidents that will not be deemed accidental or inadvertent leads one to assume that there are incidents that will be deemed accidental or inadvertent. OPC noted it is unsure what is meant by the "30 day cure period" and urged that it be deleted because it has no statutory basis. Further, OPC suggested deletion of the language which refers to accidental or inadvertent slamming incidents. Finally, OPC suggested deletion of the language in sec.23.106(i)(4) which has no statutory basis. The commission disagrees with the parties that changes should be made to sec.23.106(i). The commission has authority under S.B. 253 and PURA to require the maintenance and production of records under sec.23.106(i)(1) and (2). Further, the commission is not required to notify a utility of the reason(s) that have prompted the commission's request for a record(s). The commission has considered the comments regarding the "accidental or inadvertent" and "repeated and "reckless" language in sec.sec.23.106(i)(3) and (4), but is not persuaded that the provisions should be amended. The commission believes sec.sec.23.106(i)(3) and (4) provide fair notice to telecommunications utilities as to the nature of the proscribed conduct and the standards to which parties will be held when claims of accidental or inadvertent are raised. Further, the commission believes the language of sec.sec.23.106(i)(3) and (4) does not prevent the commission from looking at specific facts and exercising its judgment accordingly. SWBT commented that sec.23.106(j), which requires the identification of both the LEC and the IXC on the first page of a bill, would cause problems in the case of multiple- line accounts where more than one PC may be selected. SWBT suggested adding language which requires that the IXC associated with the main billing number be identified on the first page, with any additional information to be printed on a subsequent page. The commission understands that the first page of the bill may not have sufficient space to allow all IXCs of multiple-line accounts to be printed. The commission has amended the rule to allow that, to the extent that multiple IXCs will not fit on the first page of a bill, the remaining IXCs may be displayed elsewhere in the bill. TTA suggested sec.23.106(j)(2) be redrafted to establish that providers of local exchange service which also bill for interexchange services be subject to the disclosure requirement only if there is a "direct" billing arrangement between the local service provider and the primary interexchange service provider. TTA also stated that the requirement in subsection (j)(4) is burdensome and exceeds the legislative direction found in S.B. 253. TTA suggested that sec.23.106(j) should not require that consumer notice be placed on the first page of each bill. OPC and CU disagreed with TTA's comments that LECs should be exempted from listing a customer's primary interexchange carrier whenever there is no direct relationship with the primary interexchange carrier. The commission agrees with OPC and CU. Senate Bill 253 does not specify that the billing relationship must be the type of direct contractual relationship contemplated by TTA. TEXALTEL similarly suggested that PICs not be identified as required in subsection (j)(2) since the bill is not always from the PIC. The commission notes that the purpose of subsection (j)(1), (2), and (3) is to give the customer the ability to identify when an unauthorized carrier change has occurred. The identification of the provider for each type of service on the relevant bill is necessary to determine if an unauthorized switch has occurred. TEXALTEL also argued this section has no connection to slamming and the commission lacks jurisdiction to enforce compliance by non-dominant carriers. The commission disagrees. SENATE BILL 253 expressly grants the commission authority to promulgate these provisions. TEXALTEL also commented that the language in sec.23.106(j)(3) could be read to require that if a LEC provides billing for any IXC, that it must print the PIC on all of its bills. The commission believes that the rule is clear in its application to each customer's bill and that no revision is necessary. TRA commented that the billing programming costs to implement the commission contact information in (j)(4) is overly burdensome. Both TRA and MCI noted that the information provided in (j)(4) is duplicative of information which will be provided pursuant to subsection (h). TRA recommended that the requirement in (j)(4) should be deleted in favor of allowing carriers to disclose service changes and references to the commission's Office of Customer Protection in their notices of customer rights. The commission imposes the customer notice of (j)(4) as directly required by S.B. 253. In addition, TTA noted that S.B. 253 does not require that the customer notice in (j)(4) must be placed on the first page. The commission agrees with the comment of TTA and due to limited space on the first page amends (j)(4) to require that a bill for telecommunications service must place the information prominently on the customer's bill, which may or may not be the first page of the bill. TSTCI commented that customer confusion arises when a primary IXC resells its service to "underlying carriers" unbeknownst to the customer. OPC and CU agreed that this is a problematic issue in their reply comments. The commission believes that compliance with sec.23.106 will eliminate this situation; the rule is clear in stating that the primary interexchange carrier is the provider which must be identified. This issue is also more specifically addressed by the FCC in its proposed rules. This new section and the amendment are adopted under the Public Utility Regulatory Act, 75th Legislature, Regular Session, Chapter 166, sec.1, 1997 Texas Session Law Service 732, 733 (Vernon) (to be codified at Texas Utilities Code Annotated sec.14.002 and sec.14.052) (PURA), which provides the Public Utility Commission with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction, including rules of practice and procedure; and specifically, Texas Senate Bill 253, 75th Legislature, Regular Session (1997), which sets out the manner in which a telecommunications utility is permitted to switch a customer from one telecommunications utility to another in the State of Texas. Cross Index to Statutes: PURA sec.14.002 and sec.14.052. sec.23.97. Interconnection. (a)-(g) (No change.) (h) Filing of rates, terms, and conditions. (1) Rates, terms and conditions resulting from negotiations, compulsory arbitration process, and statements of generally available terms. (A) A CTU from which interconnection is requested shall file any agreement, adopted by negotiation or by compulsory arbitration, with the commission. The commission shall make such agreement available for public inspection and copying within 10 days after the agreement is approved by the commission pursuant to subparagraphs (C) and (D) of this paragraph. (B) An ILEC serving greater than five million access lines may prepare and file with the commission, a statement of terms and conditions that it generally offers within the state pursuant to 47 United States Code sec.252(f) (1996). The commission shall make such statement available for public inspection and copying within 10 days after the statement is approved by the commission pursuant to subparagraph (E) of this paragraph. (C)-(E) (No change.) (2) (No change.) (i) Customer safeguards. (1) Requirements for provision of service to customers. Nothing in this section or in the CTU's tariffs shall be interpreted as precluding a customer of any CTU from purchasing local exchange service from more than one CTU at a time. No CTU shall connect, disconnect, or move any wiring or circuits on the customer's side of the demarcation point without the customer's express authorization as specified in sec.23.106 of this title, (relating to Selection of Telecommunications Utilities). (2)-(3) (No change.) sec.23.106. Selection of Telecommunications Utilities. (a) Purpose. The provisions of this section are intended to ensure that all customers in this state are protected from an unauthorized change in a customer's local or long-distance telecommunications utility. (b) Application. This section, including any reference in this section to requirements in 47 Code of Federal Regulations sec.64.1100 and sec.64.1150 (relating to changing interexchange carriers), applies to all "telecommunications utilities," as that term is defined in subsection (c)(5) of this section. (c) Definitions. The following words and terms, when used in this section, shall have the following meaning, unless the context clearly indicates otherwise: (1) Automatic number identification (ANI) - The automatic transmission by the local switching system of the originating billing telephone number to an interexchange carrier or other communications carrier in the normal course of telephone operations. (2) Calling area - The area within which telecommunications service is furnished to customers under a specific schedule of exchange rates. A "local" calling area may include more than one exchange area. (3) Carrier-initiated change - A change in the telecommunications utility serving a customer that was initiated by the telecommunications utility to which the customer is changed, whether the switch is made because a customer did or did not respond to direct mail solicitation, telemarketing, or other actions initiated by the carrier. (4) Customer-initiated change - A change in the telecommunications utility serving a customer that is initiated by the customer and is not the result of direct mail solicitation, telemarketing, or other actions initiated by the carrier. (5) Telecommunications utility - A telecommunications utility as defined in the Public Utility Regulatory Act (PURA) sec.sec.51.002(8) and (11), including but not limited to, dominant and non-dominant carriers, local exchange telephone service providers, interexchange telecommunications service providers, and resellers of local and interexchange telecommunications service. (d) Changes initiated by a telecommunications utility. Before a carrier- initiated change order is processed, the telecommunications utility initiating the change (the prospective telecommunications utility) must obtain verification from the customer that such change is desired for each affected telephone line(s) and ensure that such verification is obtained in accordance with 47 Code of Federal Regulations sec.64.1100. In the case of a carrier-initiated change by written solicitation, the prospective telecommunications utility must obtain verification as specified in 47 Code of Federal Regulations sec.64.1150, and subsection (e) of this section, relating to Letters of Agency. The prospective telecommunications utility must maintain records of all carrier-initiated changes, including verifications, for a period of 12 months and shall provide such records to the customer, if such customer challenges the change, and to the commission staff if it so requests. A carrier-initiated change order must be verified by one of the methods set out in paragraphs (1)-(4) of this subsection. (1) Verification may be obtained by written authorization from the customer in a form that meets the requirements of subsection (e) of this section. (2) Verification may be obtained by electronic authorization placed from the telephone number(s) which is (are) the subject of the change order(s) except in exchanges where automatic recording of the ANI from the local switching system is not technically possible; however, if verification is obtained by electronic authorization, the prospective telecommunications utility must: (A) ensure that the electronic authorization confirms the information described in subsection (e)(3) of this section; and (B) establish one or more toll-free telephone numbers exclusively for the purpose of verifying the change whereby calls to the toll-free number(s) will connect the customer to a voice response unit or similar mechanism that records the required information regarding the change, including automatically recording the ANI from the local switching system. (3) Verification may be obtained by the customer's oral authorization to submit the change order, given to an appropriately qualified and independent third party operating in a location physically separate from the marketing representative, that confirms and includes appropriate verification data (e.g., the customer's date of birth or mother's maiden name). (4) Verification may be obtained by sending each new customer an information package via first class mail within three business days of a customer's request for a telecommunications utility change provided that such verification meets the requirements of subparagraph (A) of this paragraph and the customer does not cancel service after receiving the notification pursuant to subparagraph (B) of this paragraph. (A) The information package must contain at least the information and material as specified in 47 Code of Federal Regulations sec.64.1100(d) and this subparagraph which includes: (i) a statement that the information is being sent to confirm a telemarketing order placed by the customer within the previous week; (ii) the name of the customer's current provider of the service that will be provided by the newly requested telecommunications utility; (iii) the name of the newly requested telecommunications utility; (iv) the type of service(s) that will be provided by the newly requested telecommunications utility (v) a description of any terms, conditions, or charges that will be incurred; (vi) the statement, "I understand that I must pay a charge of approximately $ (industry average charge) to switch providers. If I later wish to return to my current telephone company, I may be required to pay a reconnection charge to that company. I also understand that my new telephone company may have different calling areas, rates and charges than my current telephone company, and by not canceling this change order within 14 days of the date that this information package was mailed to me I indicate that I understand those differences (if any) and am willing to be billed accordingly; (vii) the telephone numbers that will be switched to the newly requested telecommunications utility; (viii) the name of the person ordering the change; (ix) the name, address, and telephone number of both the customer and the newly requested telecommunications utility; (x) a postpaid postcard which the customer can use to deny, cancel or confirm a service order; (xi) a clear statement that if the customer does not return the postcard the customer's telecommunications utility will be switched to the newly requested telecommunications utility within 14 days after the date the information package was mailed by (the name of the newly requested telecommunications utility); and (xii) the statement, "Complaints about telephone service and unauthorized changes in a customer's telephone service provider ("slamming") are investigated by the Public Utility Commission of Texas. If a telephone company "slams" you and fails to resolve your request to be returned to your original telephone company as required by law, or if you would like to know the complaint history for a particular telephone company, please write or call the Public Utility Commission of Texas, P.O. Box 13326, Austin, Texas 78711-3326, (512) 936-7120, or toll-free within Texas at 1-888-782-8477. Hearing and speech-impaired individuals with text telephones (TTY) may contact the commission at (512) 936- 7136." (B) The customer does not cancel the requested change within 14 days after the information package is mailed to the customer by the prospective telecommunications utility. (e) Letters of Agency (LOA). If a telecommunications utility obtains written authorization from a customer for a change of telecommunications utility as specified in subsection (d)(1) of this section, it shall use a letter of agency (LOA) as specified in this subsection. (1) The LOA shall be a separate or easily separable document containing only the authorizing language described in paragraph (3) of this subsection for the sole purpose of authorizing the telecommunications utility to initiate a telecommunications utility change. The LOA must be signed and dated by the customer of the telephone line(s) requesting the telecommunications utility change. (2) The LOA shall not be combined with inducements of any kind on the same document; except that the LOA may be combined with a check if the LOA and the check meet the requirements of subparagraphs (A)-(B) of this paragraph. (A) An LOA combined with a check may contain only the language set out in paragraph (3) of this subsection, and the necessary information to make the check a negotiable instrument. (B) A check combined with an LOA shall not contain any promotional language or material but shall contain, on the front of the check and on the back of the check in easily readable, bold-faced type, type near the signature line, the following notice: "By signing this check, I am authorizing (name of the telecommunications utility) to be my new telephone service provider for (the type of service that the telecommunications utility will be providing). (3) LOA language. (A) The LOA must be printed clearly and legibly and use only the following language: Figure 1: 16 TAC sec.23.106(e)(3)(A) (B) In the LOA set out by subparagraph (A) of this paragraph, the telecommunications utility seeking authorization shall replace, in bold type, the words: (i) "(new telecommunications utility)," with its corporate name; (ii) "(type of service(s) that will be provided by the new telecommunications utility)," with the type of service(s) that it will be providing to the customer; and (iii) "I must pay a charge of approximately $ (industry average charge)" with the text, "there is no charge" only if there is no charge of any kind to the customer for the switchover. (4) The LOA shall not suggest or require that a customer take some action in order to retain the customer's current telecommunications utility. (5) If any portion of a LOA is translated into another language, then all portions of the LOA must be translated into that language. Every LOA must be translated into the same language as any promotional materials, oral descriptions or instructions provided with the LOA. (f) Changes initiated by a customer. In the case of a customer-initiated change of telecommunications utility, the telecommunications utility to which the customer has changed his service shall maintain a record of nonpublic customer specific information that may be used to establish that the customer authorized the change. Such information is to be maintained by the telecommunications utility for at least 12 months after the change and will be used to establish verification of the customer's authorization. This information shall be treated in accordance with the Federal Communications Commission (FCC) rules and regulations relating to customer-specific customer proprietary network information, and shall be made available to the customer and/or the commission staff upon request. (g) Unauthorized changes. (1) Responsibilities of the telecommunications utility that initiated the change. If a customer's telecommunications utility is changed and the change was not made or verified consistent with this section, the telecommunications utility that initiated the unauthorized change shall: (A) return the customer to the telecommunications utility from which the customer was changed (the original telecommunications utility) where technically feasible, and if not technically feasible, take all action within the utility's control to return the customer to the original utility, including requesting reconnection to the original telecommunications utility from a telecommunications utility that can execute the reversal, within three business days of the customer's request; (B) pay all usual and customary charges associated with returning the customer to the original telecommunications utility within five business days of the customer's request; (C) provide all billing records to the original telecommunications utility that are related to the unauthorized provision of services to the customer within 10 business days of the customer's request to return the customer to the original telecommunications utility; (D) pay the original telecommunications utility any amount paid to it by the customer that would have been paid to the original telecommunications utility if the unauthorized change had not occurred, within 30 business days of the customer's request to return the customer to the original telecommunications utility; and (E) return to the customer any amount paid by the customer in excess of the charges that would have been imposed for identical services by the original telecommunications utility if the unauthorized change had not occurred, within 30 business days of the customer's request to return the customer to the original telecommunications utility. (2) Responsibilities of the original telecommunications utility. The original telecommunications utility from which the customer was changed shall: (A) provide the telecommunications utility that initiated the unauthorized change with the amount that would have been imposed for identical services by the original telecommunications utility if the unauthorized change had not occurred, within 10 business days of the receipt of the billing records required under paragraph (1)(C) of this subsection; (B) provide to the customer all benefits associated with the service(s) (e.g., frequent flyer miles) that would have been awarded had the unauthorized change not occurred, on receipt of payment for service(s) provided during the unauthorized change; and (C) maintain a record related to customers that experienced an unauthorized change in telecommunications utilities that contains: (i) the name of the telecommunications utility that initiated the unauthorized change; (ii) the telephone number(s) that were affected by the unauthorized change; (iii) the date the customer requested that the telecommunications utility that initiated the unauthorized change return the customer to the original carrier; and (iv) the date the customer was returned to the original telecommunications utility. (h) Notice of customer rights. (1) Each telecommunications utility shall make available to its customers the notice set out in paragraph (3) of this subsection in both English and Spanish as necessary to adequately inform the customer; however, the commission may exempt a telecommunications utility from the requirement that the information be provided in Spanish upon application and a showing that 10% or fewer of its customers are exclusively Spanish- speaking, and that the telecommunications utility will notify all customers through a statement in both English and Spanish, in the notice, that the information is available in Spanish from the telecommunications utility, both by mail and at the utility's offices. (2) Each notice provided as set out in paragraph (4)(A) of this subsection shall also contain the name, address and telephone numbers where a customer can contact the telecommunications utility. (3) Customer notice. The notice shall state: Figure 2: 16 TAC sec.23.106(h)(3) (4) Distribution and timing of notice. (A) Each telecommunications utility shall mail the notice to each of its residential and business customers within 30 days of the effective date of this section. In addition, the telecommunications utility shall send the notice to new customers at the time service is initiated, and upon customer request. (B) Each telecommunications utility shall print the notice in the white pages of its telephone directories, beginning with the first publication of such directories subsequent to the effective date of this section; thereafter, the notice must appear in the white pages of each telephone directory published for the telecommunications utility. The notice that appears in the directory is not required to list the information contained in paragraph (2) of this subsection. (i) Compliance and enforcement. (1) Records of customer verifications. A telecommunications utility shall provide a copy of records maintained under the requirements of subsections (d) - (f) of this section to the commission staff upon request. (2) Records of unauthorized changes. A telecommunications utility shall provide a copy of records maintained under the requirements of subsection (g)(2)(C) of this section to the commission staff upon request. (3) Administrative penalties. If the commission finds that a telecommunications utility has repeatedly engaged in violations of this section, the commission shall order the utility to take corrective action as necessary, and the utility may be subject to administrative penalties pursuant to PURA sec.15.023 and sec.15.024. For purposes of sec.sec.15.024(b) and (c), there shall be a rebuttable presumption that a single incident of an unauthorized change in a customer's telecommunications utility ("slamming") is not accidental or inadvertent if subsequent incidents of slamming by the same utility occur within 30 days of when the incident is reported to the commission, or during the 30-day cure period. Any proceeds from administrative penalties that are collected under this section shall be used to fund enforcement of this section. (4) Certificate revocation. If the commission finds that a telecommunications utility is repeatedly and recklessly in violation of this section, and if consistent with the public interest, the commission may suspend, restrict, or revoke the registration or certificate of the telecommunications utility, thereby denying the telecommunications utility the right to provide service in this state. For purposes of this section, a single incident of slamming may be deemed reckless if subsequent incidents of slamming by the same telecommunications utility occur during the 30-day grace period after an incident of slamming is reported to the commission regarding the initial incident. (j) Notice of identity of a customer's telecommunications utility. Any bill for telecommunications services must contain the information contained in paragraphs (1)-(4) of this subsection in legible, bold type in each bill sent to a customer. Where charges for multiple lines are included in a single bill, the information contained in paragraphs (1)-(3) of this subsection must be contained on the first page of the bill to the extent possible. Any information that cannot be located on the first page must be displayed prominently elsewhere in the bill. (1) If a bill is for local exchange service, the name and telephone number of the telecommunications utility that is providing local exchange service directly to the customer. (2) If the bill is for interexchange services, the name and telephone number of the primary interexchange carrier. (3) In such cases where the telecommunications utility providing local exchange service also provides billing services for a primary interexchange carrier, the first page of the combined bill shall identify both the local exchange and interexchange providers, as required by paragraphs (1) and (2) of this subsection; however, the commission may, for good cause, waive this requirement in exchanges served by incumbent local exchange companies serving 31,000 access lines or less. (4) A statement, prominently located in the bill, that if the customer believes that the local exchange provider or the interexchange carrier named in the bill is not the customer's chosen interexchange carrier, that the customer may contact: Public Utility Commission of Texas, Office of Customer Protection, P. O. Box 13326, Austin, Texas 78711-3326, (512) 936-7120 or in Texas (toll-free) 1-888-782-8477. Hearing and speech-impaired individuals with text telephones (TTY) may contact the commission at (512) 936-7136. 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 September 12, 1997. TRD-9712208 Rhonda Dempsey Rules Coordinator Public Utility Commission of Texas Effective date: October 2, 1997 Proposal publication date: July 1, 1997 For further information, please call: (512) 936-7308 TITLE 22. EXAMINING BOARDS PART XXI. Texas State Board of Examiners of Psychologists CHAPTER 473.Fees 22 TAC sec.473.3 The Texas State Board of Examiners of Psychologists adopts an amendment to sec.473.3, concerning Annual Renewal Fees, to be effective September 10, 1997, without changes to the proposed text published in the May 23, 1997, issue of the Texas Register (22 TexReg 4411). The amendment is necessary to implement the Board's licensing and enforcement strategies concerning the Licensed Specialist in School Psychology in accordance with its mission and strategic plan by generating revenue, pursuant to the 1995 General Appropriations Act, 74th Legislative Session, House Bill Number 1. The amendment will ensure funding to permit the Board to carry out its mission to protect the public. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to promulgate rules consistent with the Statute. Pursuant to the Psychologists' Certification and Licensing Act, sec.26, effective September 1, 1996, any individual who provides school psychological services in a public school district must be a Licensed Specialist in School Psychology. Given the necessity of immediately establishing a renewal fee for the Licensed Specialist in School Psychology in order to permit individuals currently licensed as Licensed Specialists in School Psychology to renew said licenses for the current fiscal year, the Board finds that it would create an imminent peril to the public health and welfare if Licensed Specialists in School Psychology were unable to renew these licenses and, therefore, were unable to provide school psychological services to the students of the Texas public school districts, which would occur unless the effective date of this rule is expedited as permitted by the Texas Government Code, sec.2001.036(a)(2). 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 September 9, 1997. TRD-9712107 Sherry L. Lee Executive Director Texas State Board of Examiners of Psychologists Effective date: September 10, 1997 Proposal publication date: May 23, 1997 For further information, please call: (512) 305-7700 TITLE 25. HEALTH SERVICES PART I. Texas Department of Health CHAPTER 1.Texas Board of Health Procedures and Policies 25 TAC sec.sec.1.6, 1.7 The Texas Department of Health (department) adopts amendments to sec.sec.1.6 and 1.7 concerning actions requiring Board of Health (board) approval, and the duties of the commissioner of health (commissioner). Sections 1.6 and 1.7 are adopted with changes to the proposed text as published in the July 4, 1997, issue of the Texas Register (22 TexReg 6254). The amendment to sec.1.6 will increase board involvement in the approval of senior staff at the department, and in the major contracting activities of the department. The amendment to sec.1.7 requires the commissioner to hire and supervise personnel, execute all contracts greater than $1 million, and to advise the board on major contracting activities. The following comments were received concerning the proposed sections. Following each comment is the department's comments and any resulting change(s). Minor editorial changes were made for clarification purposes. Comment: Concerning sec.1.6, a commenter suggested that the board would be better served by receiving information of major contracting activities prior to the time a contract is written. Response: The department agrees and has changed the rule accordingly. Comment: Concerning sec.sec.1.6 and 1.7, a commenter suggested the proposed rules state that the commissioner supervises the internal auditor when the law requires the internal auditor to report to the board. Response: The department agrees and has changed the rule accordingly. The commenters included a board member and staff of the department. The amendments are adopted under the Health and Safety Code, sec.12.001, which provides the board with the authority to adopt rules for its procedure and for the performance of each duty imposed by law on the board, the department, or the commissioner of health. sec.1.6. Actions Requiring Board Approval (a) Strategic plan. The strategic plan is subject to approval by the Board of Health. (b) Appropriation request. The department's appropriation request and annual operating budget are subject to approval by the board prior to submission to the legislature. (c) Rules. The board shall adopt rules for its own procedure and for the performance of each duty imposed by law on the board, the department, and the commissioner. (d) Appointment of the director of the Internal Audit Division. The appointment or removal of the director of the Internal Audit Division by the commissioner is subject to approval by the board. (e) Of those appointments made by the commissioner, the following shall be subject to the approval of the board: (1) the deputy commissioners of the department; (2) the associate commissioners of the department; (3) the regional directors of the department; (4) the director of the Texas Center for Infectious Disease; and (5) the director of the South Texas Hospital. (f) Contracts. The chair of the board shall appoint a subcommittee of no more than three members to review contract activities to which the department is a party, involving payment greater than $1 million. The subcommittee shall report major contract activity to the board on a quarterly basis. (g) Other actions. The board may approve any other action by the commissioner or the department where the approval of the board is required by law or requested by the commissioner. sec.1.7. Commissioner of Health (a) The commissioner of health, as the executive head of the Texas Department of Health (department), shall perform the duties delegated and assigned by the Board of Health (board) and state law. Subject to sec.1.6 of this title (relating to Actions Requiring Board Approval), the board conducts all department business through the commissioner. (b) The commissioner shall: (1) administer and enforce federal and state health laws applicable to the department by issuing orders, making decisions, executing contracts, and implementing the duties delegated or assigned to the commissioner by the board; (2) administer and implement department services, programs, and activities, maintain professional standards within the department, and represent the department as its chief executive. To accomplish this goal, the commissioner is authorized to hire and supervise personnel, establish appropriate organization, acquire suitable administrative, clinical, and laboratory facilities, and obtain sufficient financial support; (3) hire and supervise all personnel subject to sec.1.6(e) of this title; (4) execute all contracts to which the department is a party involving payment greater than $1 million. This duty may not be delegated; and (5) provide information to the board's subcommittee on contracts concerning contracting activities anticipated to be for payment greater than $1 million, including requests for proposals, invitations for bid, and other procurement activities. 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 September 12, 1997. TRD-9712272 Susan K. Steeg General Counsel Texas Department of Health Effective date: October 6, 1997 Proposal publication date: July 4, 1997 For further information, please call: (512) 458-7236 CHAPTER 30.Medicaid Managed Care SUBCHAPTER B.Standards for the State of Texas Access Reform (STAR) 25 TAC sec.sec.30.22, 30.23 The Texas Department of Health (department) adopts amendments to sec.30.22 and sec.30.23, concerning enrollment of Medicaid managed care members. Section 30.23 is adopted with one change to the proposed text as published in the April 15, 1997, issue of the Texas Register (22 TexReg 3509). Section 30.22 is adopted without change, and therefore the section will not be republished. The amendments add definitions and establish a detailed process for assigning Medicaid managed care members to managed care organizations (MCOs) (including a Primary Care Case Management (PCCM) network) and to primary care physicians (PCPs) if the members fail to electively select an MCO and PCP. When Medicaid clients who are eligible for the state's Medicaid managed care program fail to select an MCO and PCP during an enrollment period specified by the state, the Texas Department of Health or its agent will assign the Medicaid client to an MCO and PCP. These amendments provide the criteria the state follows in making those default assignments. The department held a public hearing concerning the proposed rules on August 7, 1997, in Austin. One change was made to sec.30.23(e)(1) as a result of comments received. The following comments were received concerning the proposed sections, and the department's response to the comments are described as follows. Comment: Concerning the rules in general, one commenter stated that a patient's encounter history with a provider should be broadened to include charity/uninsured encounter data supplied by traditional providers. Response: The department disagrees with the commenter and has made no change in the rules in response to the comment. Default to PCPs based on factors other than those specified in the rules is permitted by sec.30.23(e)(5). Charity/uninsured encounter data may be considered if the department determines that it is an appropriate measure for purposes of defaulting to PCPs. Comment: Concerning the rules in general, one commenter stated that a member's diagnosis should be added to the criteria for defaulting a Medicaid managed care member to an MCO and PCP. Response: The department disagrees with adding this level of specificity and has not made a change to the rules in response to the comment. The proposed rules allow for the department to take other factors into consideration in the default methodology. Special medical needs may be considered as provided by sec.30.23(e)(8), but the department does not believe that a member's diagnosis should be added to that criteria. Comment: Concerning the rules in general, one commenter said the rules would violate the Civil Rights Bill of 1964. Response: The department disagrees and has made no changes in response to the comment. The department does not believe that the proposal violates any state or federal law. Comment: Concerning the rules in general, one commenter was opposed to the department policy of maintaining the same primary care provider (PCP) as the most important factor in defaulting a Medicaid managed care member to an MCO and to the department policy of awarding default assignments to MCOs based on the percentage of their elective enrollments. The commenter recommended numerous changes throughout the rules to lessen the weight given to past claims history and percentage of elective enrollments. The commenter suggested that the department balance those considerations with other factors which characterize each health plan. Response: The department disagrees with the commenter and no changes have been made in response to the comments. The department favors member choice of a PCP and seeks to preserve the priority of that choice as a basis for assigning members to an MCO. It is the department's policy that MCOs should be rewarded for the efforts they initiate regarding enrollment of Medicaid recipients, and the proposal was written to reflect a benefit for those MCOs through the use of elective enrollment as a criteria for default assignments. Comment: Concerning sec.30.23(d), one commenter suggested this section be amended to include time frames for the enrollment and default process. Response: The department disagrees with the commenter and has made no changes in response to this comment. Time frames are more appropriately established in operational procedures since time frames can vary during various phases of the program. Comment: Concerning sec.30.23(e)(1), one commenter recommended the provision be changed to make an MCO responsible for assisting members select a PCP if the member selects the MCO but no PCP. Response: The department disagrees with the commenter because this suggestion is administratively burdensome and is not feasible for the department to implement. No changes were made in response to the comment. Comment: Concerning sec.30.23(e)(1), two commenters said in a case in which a member selects a PCP but no MCO, the assignment of a member to an MCO should not be based on proximity but on other factors related to MCOs. Response: The department agrees with the commenters and has amended sec.30.23(e)(1). Comment: Concerning sec.30.23(e)(1), one commenter recommended that default not be conducted by the department until after a member is given an opportunity to choose an MCO and PCP through face-to-face outreach. Response: The department disagrees with the commenter and has not made a change in response to the comment. The department's goal is to minimize the number of default assignments to MCOs and PCPs. The department undertakes a broad range of efforts to inform members about their choice, including face-to-face contact. However, the department believes implementing the suggestion by rule would inappropriately limit the department's flexibility in administering the program. The department believes that the default mechanism as proposed is in the best interest of each member and the department. Comment: Concerning sec.30.23(e)(2) and (3), one commenter stated the provision should take into account the frequency of patient-provider encounters and not default a member based only on the most recent encounter history. The commenter recommended the methodology for defaulting to a PCP be based on an established pattern of utilization with a particular provider and that the methodology allow for default to a teaching hospital or clinic as a PCP. Response: The department disagrees that the suggested changes are necessary. Sections 30.23(e)(2) and (3) allow for consideration of the number of encounters with a PCP in addition to the most recent encounter. Therefore, frequency may be considered under the rules as proposed. The department allows for the designation of clinics, including hospital-based clinics, as PCPs. Comment: Concerning sec.30.23(e)(5), one commenter suggested that the department clarify that all participating PCPs will be eligible to have members assigned to them through the default process. Response: The department disagrees that there is need for the suggested clarification. All participating PCPs are eligible to have members assigned to them through the default methodology. The department believes this is reflected in the rules as proposed. Comment: Concerning sec.30.23(e)(5), one commenter suggested that the department base the default methodology, in part, on an MCO's willingness to offer continuity of coverage to a member who becomes ineligible for Medicaid. Response: The department disagrees with the commenter because the proposal allows for the department to develop criteria as needed. The department has made no change in response to the comment. Comment: Concerning sec.30.23(e)(12), several commenters opposed the section because it limits member access to the PCCM model and gives preference to HMOs. Response: The department disagrees and has made no change in response to this comment. The primary purpose for limiting defaults to the PCCM program is to allow for budget certainty by the state. Since the PCCM network pays claims on the traditional Medicaid fee-for-services basis plus a $3 case management fee, while the state assumes full risk, high defaults to the PCCM program exposes the state to a financial loss compared with the cost under regular Medicaid. A loss to the state would be viewed as non-compliance with the federal waiver which authorizes the state to implement Medicaid managed care in order to achieve cost savings. The rules do not eliminate the PCCM model, and members may choose or may be defaulted to the PCCM model under certain circumstances. Comment: Concerning sec.30.23(e)(12), one commenter said access to a PCCM network should not be limited because patients who have an established relationship with a primary care provider should have the opportunity to continue that relationship. Response: The department agrees that an established patient-provider relationship should be preserved and believes the rules as proposed achieve this goal. The rules are designed to ensure that patients are defaulted to a primary care provider with whom they have an established relationship. Therefore, the department has made no change in response to the comment. Comment: Concerning sec.30.23(e)(12), several commenters opposed allowing default enrollment to be made only to an HMO and not to a PCCM network. Response: The department disagrees with the commenters and has made no change in response to this comment. The proposed rules allow defaults to be made to a PCCM network under certain circumstances. Comment: Concerning sec.30.23(e)(12), several commenters opposed the elimination of the PCCM network from the state's Medicaid managed care programs. Response: The department disagrees with the commenters and has made no change in response to the comment. The proposed section does not eliminate the option of a PCCM network in the Medicaid managed care program. Comment: Concerning sec.30.23(e)(12), two commenters state that Medicaid managed care members should not be forced to change to an HMO from the PCCM model. Response: The department disagrees and has made no change in response to the comment. The default mechanism does not affect members who choose an MCO and PCP through the enrollment process; members may choose among any participating MCO. Members who fail to choose an MCO may still be defaulted to a PCCM network as specified in the rules. The department received approximately 50 responses from individuals and organizations commenting on the rules, including the following: Bexar County Medical Society, Texas Organization of Rural & Community Hospitals, Harris Methodist, Susan M. Berry, Arthur E. Marlin, Denise P. Kleister, Ricardo Mu¤oz, Michael C. Snabes, South Texas PM&R Group, Michael L. Jones, Thomas A. Kingman, Gail Van Wingerden, Tristan A. Castaneda, South Texas OB/GYN Associates, Joel Y. Rutman, Harris County Medical Society, James S. Potyka, Rolando N. Torio, Medicaid Primary Care Case Management Physicians, William H. Bradshaw, Enrique M. Galan, Robert W. Kottman, Sheldon Gross, Northwest Pediatric Associates, Raymond D. Potterf, Texas Academy of Family Physicians, John V. Mumma, Hugo A. Rojas, Ernesto Bondarevsky, Richard G. Rouse, Joel Rutstein, Joe Childress, L. Richard Garcia, PCA Health Plans, South Texas Newborn Associates, Albert E. Sanders, Renal Associates, Houston Welfare Rights Organization, Seven Oaks Women's Center, AmeriHealth HMO of Texas, Inc., Texas Association of Public & Nonprofit Hospitals, Healthcare Matters!, Texas Pediatric Society, John R. Almirol, Ronald D. Wong, Texas Medical Association, Texas Society of Internal Medicine, HMO Blue, and Dallas County Medical Society. All comments were neither for nor against the rules in their entirety. However, they raised questions, offered comments for clarification, and suggested changes in or deletion of specific provisions in the rules. The following commenter was for the rules in their entirety: Americaid Community Care. The sections implement Texas Health and Safety Code, sec.12.017, which requires the department to adopt standards for MCOs participating in the Medicaid program. General rulemaking authority for the rules is contained in Texas Health and Safety Code, sec.12.001, which requires the Texas Board of Health (board) to adopt rules for its procedures and for the performance of any duty imposed by law on the board, the department and the commissioner of health. sec.30.23.Enrollment. (a) For the purposes of this section, a managed care organization (MCO) includes a primary care case management (PCCM) provider network. (b) The department shall determine which Medicaid eligible clients residing in a STAR Program service area will be mandatory or voluntary members and which Medicaid eligible clients may be excluded from participation in managed care. (c) The department shall conduct enrollment and disenrollment activities or contract with another agency or contractor to assume administration of these functions. The department may not contract with a participating managed care organization to serve as the administrator for enrollment or disenrollment activities in any area of the state. (d) The department shall establish procedures for enrollment into participating MCOs and primary care providers (PCP), including enrollment periods and time limits within which enrollment must occur. Members who are mandatory members must select an MCO or PCP within the time period allowed by the department or be defaulted to an MCO or PCP. (e) Mandatory members who fail to select an MCO or PCP during the period established by the department will have an MCO or PCP selected for them by the department or its contractor using criteria determined by the department. The department shall establish a detailed default methodology that incorporates the following requirements. (1) A member who does not select a PCP and MCO will be assigned a PCP and MCO through the default process established by the department. A member who selects an MCO but not a PCP, will be assigned to the selected MCO and the member will be assigned to a PCP through the default process. A member who selects a PCP but not an MCO will be assigned to the PCP chosen by the member, subject to PCP restrictions on client age, gender, and capacity, and the member will be assigned to an MCO through a manual default process that is established by the department based on the provisions of sec.30.23(e)(6). (2) Each member, who has not selected a PCP, will be defaulted to the PCP with whom there is the most recent Medicaid managed care encounter history. The number of encounters between the member and the PCP may also be considered. (3) If there is no Medicaid managed care encounter history, each member will be defaulted to the PCP with whom there is the most recent traditional Medicaid claims history. The number of prior encounters between the member and the PCP may also be considered. (4) If a member does not have history with a PCP, the member will be defaulted to a PCP on the basis of geographical proximity to the PCP. (5) The department may identify other criteria to be used along with the criteria based on geographical proximity such as, but not limited to, capacity of the PCP, PCP performance, and greatest variance between the percentage of elective and default enrollments (with the percentage of default enrollments subtracted from the percentage of elective enrollments). (6) The department shall develop a methodology for assignment of defaults to each MCO in the service area. Such methodology may be based on MCO performance, the greatest variance between the percentage of elective and default enrollments (with the percentage of default enrollments subtracted from the percentage of elective enrollments), or other factors determined by the department. (7) Members who cannot be assigned to a PCP and MCO on the basis of an automated default process may be assigned through a manual default process determined by the department. (8) Members with special medical needs may be defaulted on the basis of a manual default methodology if such members can be identified and if the automated default process cannot be administered for such members. (9) A member who is defaulted to a PCP who is contracted with only one MCO shall be assigned to that MCO. (10) PCP restrictions on client age, gender, and capacity shall be considered as limitations to default assignments to PCPs. (11) Family members shall be defaulted to the same PCP and MCO to the maximum extent possible within the limitation of PCP restrictions on client age, gender, and capacity by MCO as well as geographical proximity considerations. (12) The detailed default methodology developed by the department shall be fully applicable to each MCO in the Medicaid managed care program by service area. However, the number of defaults assigned to the state administered PCCM network shall be restricted as follows: (A) If a member is defaulted to a PCP who is contracted only with PCCM program, the member will be defaulted to the PCCM program; (B) If a member is defaulted to a PCP who is contracted with the PCCM program and an HMO, the member will be defaulted to the HMO; (C) If a member is defaulted to a PCP who is contracted with the PCCM program and two or more HMOs, the member will be defaulted to one of the HMOs on the basis of paragraph (6) of this subsection; (D) A member will be defaulted to the PCCM program if a PCCM provider is the only PCP within reasonable geographical proximity to the member as defined by the department. (f) A member may request to change MCOs at any time and for any reason, regardless of whether the MCO was selected by the member or assigned by the department. Disenrollment will take place no later than the first day of the second month after the month in which the member has requested termination. MCOs must inform members of disenrollment procedures at the time of enrollment. MCOs must notify members in appropriate communication formats. (g) The department shall establish limits for the number of members each PCP may accept to ensure members have reasonable access to the provider. The department shall develop criteria to allow exceptions to this limit on a case-by-case basis, provided the exceptions do not adversely affect member access. (h) The department may not enroll any Medicaid eligible recipient who is excluded from participation by federal rule or regulation. (i) Recipients who are located more than 30 miles from the nearest PCP in an MCO cannot be enrolled in the MCO unless an exception is made be the department. (j) Medicaid recipients and Medicare beneficiaries must constitute less than 75 percent of the total enrollment of an MCO, unless the MCO has received a waiver for this requirement under 42 Code of Federal Regulations sec.434.26. 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 September 12, 1997. TRD-9712274 Susan K. Steeg General Counsel Texas Department of Health Effective date: October 6, 1997 Proposal publication date: April 15, 1997 For further information, please call: (512) 458-7236 CHAPTER 97.Communicable Diseases Sexually Transmitted Diseases Including Acquired Immune Deficiency Syndrome (AIDS) and Human Immunodeficiency Virus (HIV) 25 TAC sec.sec.97140-97.143 The Texas Department of Health (department) adopts amendments to sec.sec.97.140- 97.143, concerning sexually transmitted diseases (STD) including acquired immune deficiency syndrome (AIDS) and human immunodeficiency virus (HIV). Sections sec.sec.97.140-97.143 are adopted without changes to the proposed text as published in the June 20, 1997, issue of the Texas Register (22 TexReg 5894), and therefore the sections will not be republished. The amendments adopt the document titled "HIV Counseling Protocols," which will be used for counseling state employees exposed to the HIV virus infection on the job. The new document replaces the document titled "HIV Serologic Testing and Documentation Guidelines" which the Texas Board of Health (board) adopted in September 1992. The rules are also being updated to delete superfluous information and to reflect an updated address from which department information can be obtained regarding the "HIV Counseling Protocols"; the HIV counseling and testing course; the "Model Health Education Program/Resource Guide for HIV/AIDS Education of School-Age Children"; and the "Model HIV/AIDS Workplace Guidelines." No comments were received concerning the proposed rules during the comment period. The amendments to sec.97.140 and sec.97.141 are adopted under the Texas Health and Safety Code, sec.85.087, which requires that the department develop and offer a training course for persons providing HIV counseling, and charge a reasonable fee for the course; the amendment to sec.97.142 is adopted under the Texas Health and Safety Code, sec.85.004, which requires the department to develop a guide for a model program; the amendment to sec.97.143 is adopted under the Texas Health and Safety Code, sec.85.012, which requires the department to develop a model workplace guideline; Texas Health and Safety Code sec.85.016 which provides the board with authority to adopt rules necessary to implement this section; and Texas Health and Safety Code sec.12.001 which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. 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 September 12, 1997. TRD-9712273 Susan K. Steeg General Counsel Texas Department of Health Effective date: October 6, 1997 Proposal publication date: June 20, 1997 For further information, please call: (512) 458-7236 TITLE 28. INSURANCE PART I. Texas Department of Insurance CHAPTER 21.Trade Practices SUBCHAPTER B.Insurance Advertising, Certain Trade Practices, and Solicitation 28 TAC sec.21.113 The Commissioner of Insurance adopts an amendment to sec.21.113, concerning rules pertaining specifically to accident and health insurance advertising and health maintenance organization advertising. The amendment is adopted without changes to the proposal as published in the August 8, 1997 issue of the Texas Register (22 TexReg 7334). The text of the amendment to the section is not republished. The adopted amendment is necessary to implement the provisions of S.B. 682, 75th Legislature, Regular Session, which adds Article 21.20-2 to the Insurance Code, addressing advertisements for certain health benefit plans and permitting inclusion of certain rate information under certain circumstances, provided that required statutory disclosures are made. The adopted amendment provides that subject to Article 21.21 a health benefit plan advertisement may include rate information without including information about all exclusions and limitations, so long as the advertisement prominently indicates that the rates are illustrative, that a person should not send money to the issuer in response to the advertisement, that a person must complete an application for coverage in order to obtain coverage, and that certain exclusions and limitations may apply to the plan. The amendment further provides that the advertisement must indicate the age, gender and geographic location on which any premium rate mentioned in the advertisement is based. The adopted amendment also makes miscellaneous editorial and clarifying changes to certain subsections of sec.21.113. No written comments were received on the amendment as published. The amendment is adopted pursuant to the Insurance Code, Article 21.21, sec.13. Article 21.21, sec.13, provides that the department is authorized to promulgate and enforce reasonable rules and regulations and order such provision as is necessary in the accomplishment of the purposes of Article 21.21, relating to unfair competition and unfair practices. 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 September 15, 1997. TRD-9712288 Caroline Scott General Counsel and Chief Clerk Texas Department of Insurance Effective date: October 6, 1997 Proposal publication date: August 8, 1997 For further information, please call: (512) 463-6327 PART II. Texas Workers' Compensation Commission CHAPTER 110. Required Notices of Coverage SUBCHAPTER B. Employer Notices 28 TAC sec.110.108 The Texas Workers' Compensation Commission (TWCC or the Commission) adopts new sec.110.108, concerning notice to employees regarding exposure to certain communicable diseases, with changes to the proposed text as published in the June 24, 1997, issue of the Texas Register (22 TexReg 5995). This new rule is adopted in conjunction with new sec.122.3 and sec.122.4, concerning the reporting and testing requirements for emergency responders and state employees regarding exposure to certain communicable diseases and human immunodeficiency virus (HIV). The new rule is adopted to provide notice to employees of requirements set out in the Texas Health and Safety Code. The only change to the rule as proposed is the change of the toll-free telephone number cited in the notice in subsection (d) of the rule. The number has been changed to 1-800-372-7713 which will put injured workers in contact with a person in the Central office who will be able to answer questions regarding exposure to infectious diseases. The telephone number contained in the proposed rule would connect the employee with the nearest field office and could require a transfer of the call to the central office. The change allows a more direct access to information regarding work-related exposure to infectious disease. The Texas Health and Safety Code, sec.81.050(j) requires that, for the purpose of qualifying for workers' compensation, an employee who is employed as a law enforcement officer, a fire fighter, an emergency medical service employee or paramedic, or a correctional officer, who claims a possible work-related exposure to a reportable disease must provide the employer with a sworn affidavit of the date and circumstances of the exposure and document that, not later than the 10th day after the date of the exposure, the employee had a test result that indicated an absence of the reportable disease. The Texas Health and Safety Code, sec.85.116(c) provides a similar requirement for state employees who claim a possible work-related exposure to human immunodeficiency virus (HIV). Section 85.116(c) requires a state employee who claims a possible work related exposure to HIV to provide his or her employer with a written statement of the date and circumstances of the exposure and document that within 10 days after the date of exposure the employee had a test result that indicated an absence of HIV infection. Because these provisions of the Health and Safety Code affect the eligibility of certain employees to receive workers' compensation benefits, this new rule requires employers to inform employees of these requirements. Without such a rule, employees may not know of the requirements. New sec.110.108 (a) and (b) requires employers of emergency responders and state employers to post a notice in their personnel offices and in their workplace where affected employees are likely to see it, regarding the employer notification and testing requirements set out in the Health and Safety Code for eligibility for workers' compensation benefits. Subsection (c) of the new rule requires the employer's workers' compensation carrier including state and political subdivision employers to pay the cost of testing. The text of the notice to be posted is provided in subsection (d). In conjunction with this proposal, the TWCC is also adopting new sec.122.3, which sets out the employee's reporting and testing requirements for emergency responders exposed to a reportable disease, and new sec.122.4, which sets out the reporting and testing requirements for state employees exposed to HIV. Because of the close relationship between the provisions of new sec.sec.122.2, 122.4 and sec.110.108, public comments regarding all three rules have been included in this preamble. For additional information regarding the adoption of sec.sec.122.3 and 122.4 please refer to the preamble to the adoption of those rules contained elsewhere in this issue of the Texas Register. Comments generally supporting the proposed new sec.sec.110.108, 122.3 and 122.4 were received from: City of Houston Fire Department - EMS; Harris County Risk Management and Benefits; and American Insurance Association. Comments not specifically supporting or opposing the proposed new sec.110.108 but making recommendations regarding the rule were received from the following: Carol S. Lawrence; Texas Workers' Compensation Insurance Fund; Richardson Fire Department; and the Office of the Attorney General of Texas (Workers' Compensation Division). Summaries of the comments and commission responses are as follows: GENERAL COMMENT: One commenter supported both rule 110.108 and rule 122.3, stating these new rules will better protect and support Texas emergency medical personnel. Another commenter supported the notice and testing requirements. RESPONSE: Staff notes support for the rules, as proposed. COMMENT: Commenter supported the rules, emphasizing the need for determining that there's not a preexisting condition for the alleged exposure and indicating that this rule would help insurers in their investigation of an employee's alleged occupational exposure to HIV/AIDS, but should not take the place of an investigation. RESPONSE: Staff agrees that the purpose of the testing requirement is to establish the presence or absence of disease; however, the issue of investigation is not addressed by this rule. Investigation is neither prohibited nor required by the rule. DISEASES COMMENT: Commenter stated it was easy to pinpoint exposures to HIV or hepatitis B, but expressed concern with 10 day testing and reporting requirement for tuberculosis. The commenter stated that it was very difficult to pinpoint the exact time of exposure for tuberculosis because it is an airborne transmissible disease. The commenter believed that reporting based on findings discovered during annual or semi-annual examinations would be more appropriate. RESPONSE: Staff agrees in part. The acute nature of a number of the reportable diseases, the variable incubation times of the diseases' causative agents, methods of transmission and possible immunization were all considered in drafting the proposed rules. However, the Health and Safety Code, sec.81.050 specifically refers to "reportable diseases". "Reportable diseases" by statute (Health and Safety Code, sec.81.041) are to be specified by the Texas Department of Health. The diseases listed in new sec.122.3 are those diseases designated by the Texas Department of Health as "reportable diseases". The Health and Safety Code requires certain employees to obtain a test following exposure to a reportable disease, if the employee desires to retain the option of receiving workers' compensation benefits should the exposure result in a compensable injury. TWCC rules cannot change this statutory mandate. The Commission fully recognizes the concerns of the commenter and will forward the commenter's comments and information provided on tuberculosis to the Department of Health for their consideration. To clarify that issues such as those raised by the commenter can be considered by a decision-maker and to clarify that the subject matter of such issues is not limited to the incubation period of a particular disease, the last sentence of sec.122.3(c)(1) has been deleted and "These rules do not prohibit the consideration by a decision-maker of additional factors" has been added. COMMENT: One commenter asked whether a definitive test is available to demonstrate that the exposed worker is free from infection for each communicable disease listed in 25 TAC sec.97.11(b)(1)-(4) (Texas Department of Health) and, by reference, TWCC's proposed rules 110.108 and 122.3. The commenter contends that, if there is not a positive/negative' test for each disease, a statutory change and/or amendment to 25 TAC sec.97.11 and sec.97.13 (Texas Department of Health) may be necessary. RESPONSE: Staff agrees in part. Although definitive tests are available to demonstrate the absence of infection at the time of exposure for many of the diseases on the list of reportable diseases, definitive tests are not available for all of the listed diseases. In addition, due to variance in pathogenicity of the infectious organisms, signs and symptoms may be present within 24- 48 hours rendering a diagnostic test "within 10 days" moot. However, legislative action would be necessary to change the testing requirements contained in the Health and Safety Code. To clarify that issues such as those raised by the commenter can be considered by a decision-maker and to clarify that the subject matter of such issues is not limited to the incubation period of a particular disease, the last sentence of sec.122.3(c)(1) has been deleted and "These rules do not prohibit the consideration by a decision-maker of additional factors" has been added. WHO IS COVERED COMMENT: One commenter pointed out for consideration that the Texas Health and Safety Code, sec.81.050(j) does not define "employee," but that Section 401.102 (a) of the Texas Labor Code defines employee as "each person in the service of another under a contract of hire, whether express or implied, or oral or written." The commenter also cited Appeals Panel case #94647 as applying the Health and Safety Code, sec.81.050(j) to all employees. RESPONSE: Staff disagrees. Section 81.050(b) adequately defines the occupations for which these provisions apply and, therefore, the employees involved. Staff disagrees that Appeals Panel case #94647 addressed the issue of the applicability of Health and Safety Code sec.81.050. This Appeals Panel decision was based on the fact that the appeal was not timely filed. Although the Appeals Panel reviewed the evidence and referred to sec.81.050(j), the references did not represent a finding by the Appeals Panel regarding the applicability of Health and Safety Code, sec.81.050. The staff believes the intent of sec.81.050 is stated in its title of "Mandatory Testing of Persons Suspected of Exposing Certain Other Persons to Reportable Diseases, Including HIV Infection" (emphasis added), and that "certain other persons" are those engaged in the specific occupations listed in sec.81.050(b). In addition, sec.81.050(k) states that a person listed in sec.81.050(b) who may have been exposed to a reportable disease may not be required to be tested. This reference back to sec.81.050(b) further supports the limited application of sec.81.050. The Texas Department of Health in promulgation of its rules at 25 TAC Chapter 97 has also interpreted the application of the Health and Safety Code, sec.81.050 to be limited to those persons described in sec.81.050(b). COMMENT: One commenter believed that sec.122.3 should be expanded to apply to all state workers, rather than just law enforcement officers, fire fighters, emergency medical service employees, paramedics and correctional officers. The commenter reasoned that other state workers are exposed to the diseases listed in subsection (b) of this rule, and they should also be held responsible to provide documentation of exposure and "baseline" testing. The commenter also suggested that rules 122.3 and 122.4 be combined. Commenter felt that there should be one rule for all reportable diseases, including HIV. Commenter saw no logical basis for separating HIV and other reportable diseases nor for creating separate rules for state employees exposed to HIV and emergency responders exposed to a reportable disease. Employees of certified self-insurers and employees covered under workers' compensation insurance should also be included. RESPONSE: Staff disagrees. Inclusion of all employees in sec.122.3 would expand the application of the Texas Health and Safety Code, sec.81.050 and sec.85.116 and further restrict workers' compensation benefit eligibility. The separation of HIV and other reportable diseases, and the use of two rules is necessitated by the Health and Safety Code, which separates the provisions that apply to specified groups of employees. COMMENT: One commenter suggested that the coverage of the proposed rules be broadened to cover other employee and employer groups beyond emergency responders. The commenter felt that carriers will likely require any employee to meet the proof required in Texas Health and Safety Code, Chapter 81, Communicable Diseases, sec.81.050(j), before benefits are initiated and, therefore, the Commission's proposed rules may disadvantage employees who are not "emergency responders" because such employees may be unaware of the statutory requirement. RESPONSE: Staff disagrees. The staff believes the intent of sec.81.050 is stated in its title of "Mandatory Testing of Persons Suspected of Exposing Certain Other Persons to Reportable Diseases, Including HIV Infection" (emphasis added), and that "certain other persons" are those engaged in the specific occupations listed in sec.81.050(b). In addition, sec.81.050(k) states that a person listed in sec.81.050(b) who may have been exposed to a reportable disease may not be required to be tested. This reference back to sec.81.050(b) further supports the limited application of sec.81.050. The Texas Department of Health, in promulgation of its rules at 25 TAC Chapter 97, has also interpreted the application of the Health and Safety Code, sec.81.050 to be limited to those persons described in sec.81.050(b). COMMENT: One commenter suggested that the definition of "emergency responders" in 25 TAC sec.97.13(b)(2) (Texas Department of Health) and in TWCC's proposed Rules 110.108 and 122.3 are not exactly the same. The commenter pointed out that the definition in TWCC's proposed rules does not include volunteers for an employer with the responsibility of answering emergency calls for assistance. RESPONSE: Staff disagrees. Although the applicability of new sec.122.3, sec.122.4, and sec.110.108 is limited to emergency responders who are state employees or employees covered by workers' compensation insurance, the definition of "emergency responder" is the same in the Texas Department of Health rules and these new rules. Section 122.3(a) specifically includes employees providing services as a volunteer who are covered by workers' compensation insurance. The Texas Labor Code, sec.406.097 provides that an emergency service organization which is not a political subdivision or which is separate from any political subdivision may elect to obtain workers' compensation insurance coverage for its named volunteer members who participate in the normal function of the organization. The Texas Labor Code, sec.504.012 provides that a political subdivision may cover volunteer fire fighters, police officers, emergency medical personnel, and other volunteers that are specifically named. Therefore, the persons covered by the two sets of rules are essentially the same. COMMENT: Commenter requested that a definition of "emergency responder" be included and, if the rule is limited to the occupations listed in sec.122.3, that a definition of "law enforcement officer" and "emergency medical service employee" also be included. RESPONSE: Staff disagrees that additional definitions are necessary. Rule 122.3(f) refers to the Texas Department of Health rules, 25 TAC Chapter 97, Communicable Diseases, for applicable requirements. Section 97.13 of those rules provides the definition of "emergency responder" as "an emergency medical services employee, paramedic, fire fighter, correctional officer, or law enforcement officer who is employed by or volunteers for an employer with the responsibility of answering emergency calls for assistance". Application of the new rules is limited to the occupations set out in sec.122.3(a). It is not necessary to further define "law enforcement officer" or "emergency medical employee". EXPOSURE CRITERIA COMMENT: Commenter stated that the proposed rule should incorporate the provisions of the Texas Department of Health rule, 25 TAC sec.97.11, which identifies the exposure criteria for the reportable diseases listed in 122.3(b). Another commenter suggested the rule include language that defines, clarifies, and establishes objective criteria of what constitutes exposure to reportable diseases. RESPONSE: Staff agrees in part. The Texas Health and Safety Code sec.81.050 requires the Texas Health Department to prescribe the criteria that constitute exposure to reportable diseases. Subsection (b) of new Rule 122.3 lists the reportable diseases as currently determined by the Texas Department of Health, and the last sentence of subsection (b) states that "To determine the most current list of reportable diseases and the exposure criteria, refer to the Texas Department of Health rules, 25 TAC Chapter 97, Communicable Diseases." Subsection (c)(1) of Rule 122.3 states that "Exposure criteria and testing protocol must conform to Texas Department of Health requirements." The referenced rules clearly define reportable diseases and the exposure criteria for reportable diseases. It is therefore unnecessary to restate the Texas Department of Health rules in this section. COST COMMENT: Commenter, as a self-insured political subdivision, stated the desire to have the flexibility to pay for the cost of testing through alternate methods such as through the group health plan, contracting with a medical provider or by way of in-house medical providers, stating that it would allow better management of costs. RESPONSE: Payment of costs of testing for covered emergency responders of political subdivisions must be in accordance with a method which complies with Texas Labor Code sec.504.011 and new Commission rules sec.sec.122.3 and 122.4. Texas Labor Code sec.504.011 provides three methods by which a political subdivision shall extend workers' compensation benefits to its employees. However, the payment for such benefits must be made by an insurance carrier as that term is defined in Texas Labor Code sec.410.011(27), except as otherwise authorized in the Texas Workers' Compensation Act. COMMENT: One commenter felt the proposed sec.122.3 seemed to contradict the Texas Workers' Compensation Act, under sec.408.021, which states that a carrier is only liable for medical benefits for a compensable injury, by requiring the carrier to pay for a medical procedure that may not be related to a compensable injury. The commenter also felt the rule contradicts the Health and Safety Code, sec.85.116(a) which requires that the state agency pay for the costs of testing and counseling for an alleged HIV exposure. Additionally, the commenter felt the wording concerning costs in subsection (d) of sec.122.3 does not make it clear whether a self insured state agency or the Office of the Attorney General must pay for testing, noting the difference between the state agency as employer and the Office of Attorney General as carrier. RESPONSE: Staff disagrees. The Texas Health and Safety Code, sec.85.116 is the basis for the portions of the rules dealing with costs of testing for state employees. Section 85.116(d) specifically states that employee testing and counseling shall be paid from funds appropriated for payment of workers' compensation benefits to state employees. The fact that the subsection states that the director of the workers' compensation division of the Attorney General's Office shall adopt rules necessary to administer this subsection, further emphasizes that office's role and responsibility in this area. At the time the statute was written, the Office of Attorney General was both the employer and the carrier. Subsequent changes to the Texas Workers' Compensation Act, sec.501.042 modified the relationship of the Office of the Attorney General to other state agencies to only that of the carrier and identified the individual state agencies as the employer. In addition, recent changes to sec.501.042 place responsibility for state employee's with claims at the State Office of Risk Management. These changes in the status of the Office of the Attorney General have not yet been reflected in the Health and Safety Code. sec.85.116(a). Those state agencies who do not receive injury claim service from the State Office of Risk Management also have funds appropriated for workers compensation and should use those funds to meet the statutory requirements. The intent of the rules is to provide medical service to those employees whose exposure occurred within the course and scope of their employment. Payment for these medical services equates to medical only claim payments which currently are processed within the system. If the carrier determines that the exposure was not within course and scope, it may contest payment of services using established procedures. COMMENT: Commenter questioned how long an employer would be required to pay for testing for a given exposure since the incubation periods for reportable diseases vary greatly. RESPONSE: The purpose of the testing is to establish that the employee was free from the disease at the time of the exposure. Although not more than one test is anticipated to be required for determination of the presence of a particular disease, if additional testing is required to make such determination, the employer would be liable for the cost of the testing. STATEMENTS COMMENT: Commenter states that rule 122.4(b)(2), like rule 122.3(c)(2), should require the employee to provide the employer a sworn affidavit of the date and circumstances of the exposure, rather than just requiring a written statement. RESPONSE: Staff disagrees. The Health and Safety Code provides separate specific report procedures in sec.81.050(j) for emergency responders exposed to a reportable disease and in sec.85.116(c) for state employees exposed to HIV. The procedures vary in their requirement of sworn versus unsworn statements of exposure. The new rule is adopted under the Texas Labor Code, sec.402.061, which authorizes the Commission to adopt rules necessary to administer the Act; the Texas Labor Code sec.406.005, which requires employers to provide notice of workers' compensation coverage to employees; the Texas Labor Code sec.406.009, which requires the Commission to collect and maintain information, to monitor compliance with Subchapter A of Chapter 409, and to adopt rules as necessary to enforce the subchapter; the Texas Labor Code sec.406.031, which provides that an insurance carrier is liable for compensation for a covered employee's injury arising in the course and scope of employment; the Texas Labor Code sec.409.001, which requires an injured employee to notify the employer of an injury; the Texas Labor Code, sec.412.006, which authorizes the Commission to adopt rules to implement the risk management requirements for a state agency; the Texas Labor Code sec.504.011, which provides the methods by which political subdivisions are required to provide workers' compensation benefits to its employees; the Texas Labor Code sec.504.012, which allows political subdivisions to provide specifically named volunteers with workers' compensation coverage; the Texas Health and Safety Code sec.81.050(j), which requires that for the purpose of qualifying for workers' compensation an employee who claims a possible work- related exposure to a reportable disease must provide the employer with a sworn affidavit of the date and circumstances of the exposure and document that, not later than the 10th day after the date of the exposure, the employee had a test result that indicated an absence of the reportable disease; and the Texas Health and Safety Code, sec.85.116, which requires that for the purpose of qualifying for workers' compensation an employee of the state who claims a possible work- related exposure to HIV must provide the employer with a written statement of the date and circumstances of the exposure and document that, not later than the 10th day after the date of the exposure, the employee had a test result that indicated an absence of HIV infection; that the state agency pay the costs of testing and counseling; and that the Texas Department of Health establish the criteria that constitute exposure to HIV; the Texas Government Code sec.607.001, which defines "public safety employee"; the Texas Government Code sec.607.002, which provides for reimbursement to a public safety employee of reasonable medical expenses incurred in preventative treatment because of exposure to a contagious disease. sec.110.108. Employer Notice Regarding Work-Related Exposure To Communicable Disease/HIV: Posting Requirements; Payment for Tests. (a) Each employer covered by workers' compensation insurance, including state and political subdivision employers, which employ emergency medical service employees, paramedics, fire fighters, law enforcement officers or correctional officers must post the notice contained in subsection (d) of this section, in its workplace to inform employees about Health and Safety Code requirements which may affect qualifying for workers' compensation benefits following a work- related exposure to a reportable communicable disease. The notice shall be posted in the personnel office, if the employer has a personnel office, and in the workplace where employees are likely to read the notice on a regular basis. Specific guidance for employers and employees covered by this subsection is found in sec.122.3 of this title (relating to Exposure to Communicable Diseases: Reporting and Testing Requirements for Emergency Responders). (b) Each state agency must post the notice contained in subsection (d) of this section, in its workplace to inform employees about requirements which may affect qualifying for workers' compensation benefits following a work-related exposure to human immunodeficiency virus (HIV). The notice shall be posted in the personnel office and in the workplace where employees are likely to read the notice on a regular basis. Specific guidance for state employers and employees covered by this subsection is found in sec.122.4 of this title (relating to State Employees: Exposed to Human Immunodeficiency Virus (HIV): Reporting and Testing Requirements). (c) The cost of testing for exposure to a reportable communicable disease for emergency medical service employees, paramedics, fire fighters, law enforcement officers and correctional officers shall be paid by the employer's workers' compensation insurance carrier, including state and political subdivision employers. (d) The following notice shall be printed with a title in at least 15 point bold type and the text in at least 14 point normal type, in English and Spanish or in English and any other language common to the employer's affected employee population. The text of the notice shall be as follows without any additional words or changes: Figure 1: 28 TAC sec.110.108(d) 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 September 12, 1997. TRD-9712194 Susan Cory General Counsel Texas Workers' Compensation Commission Effective date: October 15, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 440-3700 CHAPTER 122. Claimants SUBCHAPTER A. Claims Procedures for Injured Employees 28 TAC sec.122.3, sec.122.4 The Texas Workers' Compensation Commission (TWCC or the Commission) adopts new sec.122.3 and sec.122.4, concerning the reporting and testing requirements for emergency responders and state employees regarding exposure to certain communicable diseases and human immunodeficiency virus (HIV), with changes to the proposed text as published in the June 24, 1997, issue of the Texas Register (22 TexReg 5997). These new rules are adopted in conjunction with the adoption of new sec.110.108, concerning employer notice regarding work-related exposure to communicable disease\ HIV: posting requirements; payment for tests. The new rules are adopted to provide employees with information regarding the testing and reporting requirements set out in the Texas Health and Safety Code for eligibility for workers' compensation benefits. Changes made to the proposed rule are in response to public comment received in writing and at a public hearing held on August 20, 1997, and are described in the summary of comments and responses section of this preamble. The list of reportable diseases in sec.122.3(b) has been changed to make it consistent with the most current list of reportable diseases designated by the Texas Department of Health at 25 TAC sec.97.3. In subsection 122.3(c)(1) the sentence "Actual time elements for obtaining the test should consider the incubation period, if any, of the disease to which the employee has been exposed." was deleted and the sentence "This rule does not prohibit a decision- maker's consideration of other factors." was added. The Texas Health and Safety Code, sec.81.050(j) requires that, for the purpose of qualifying for workers' compensation benefits, an employee who is employed as a law enforcement officer, a fire fighter, an emergency medical service employee or paramedic, or a correctional officer, who claims a possible work-related exposure to a reportable disease must provide the employer with a sworn affidavit of the date and circumstances of the exposure and document that, not later than the 10th day after the date of the exposure, the employee had a test result that indicated an absence of the reportable disease. The Texas Health and Safety Code, sec.85.116(c) provides a similar requirement for state employees who claim a possible work-related exposure to human immunodeficiency virus (HIV). Section 85.116(c) requires a state employee who claims a possible work related exposure to HIV to provide his or her employer with a written statement of the date and circumstances of the exposure and document that within 10 days after the date of exposure, the employee had a test result that indicated an absence of HIV infection. Because these provisions of the Health and Safety Code affect the eligibility of certain employees to receive workers' compensation benefits, these new rules set out the actions which must be taken by affected employees to preserve their claim for workers' compensation benefits. Without such a rule, employees may not know of the requirements. New sec.122.3 applies to all law enforcement officers, fire fighters, emergency medical service employees, paramedics, and correctional officers who have a work-related exposure to a reportable disease. Subsection (b) of the rule defines the term "reportable disease" and lists the communicable diseases currently designated as reportable by the Texas Department of Health. Subsection (c) states the requirement that to be eligible for workers' compensation benefits affected employees must obtain a test within 10 days of the exposure to the reportable disease, and the requirement that the employee provide the employer with a sworn affidavit of the date and circumstances of the exposure and a copy of the employee's test results. Subsection (d) requires the employer's workers' compensation carrier including state and political subdivision employers to pay for the employee's test regardless of the results of the test. The cost of a state employee's testing shall be paid from funds appropriated for payment of workers' compensation benefits to state employees Subsection (e) reiterates the requirement contained in new sec.110.108 that employers of emergency responders post the notice contained in sec.110.108(d). Subsection (f) refers emergency responders and their employers to Texas Health and Safety Code, Chapter 81 and to the rules of the Texas Department of Health (Chapter 97) for additional information. New sec.122.4 applies to state employees who have a work-related exposure to HIV. Subsection (b) states the requirement that to be eligible for workers' compensation benefits, state employees must obtain a test within 10 days of the exposure to HIV, and the requirement that the employee provide the employer with a written statement of the date and circumstances of the exposure and a copy of the employee's test results. Subsection (c) requires the costs of the tests to be paid from funds appropriated for payment of workers' compensation benefits to state employees. Subsection (d) reiterates the requirement contained in sec.110,108 that employers of emergency responders post the notice contained in sec.110.108(d). Subsection (e) refers emergency responders and their employers to Texas Health and Safety Code, Chapter 85 and to the rules of the Texas Department of Health (25 TAC Chapter 97) for additional information. In conjunction with this adoption, the TWCC is also adopting new rule 110.108 which requires employers of emergency responders and state employers to post a notice in their personnel offices and in their workplace where affected employees are likely to see it, regarding the testing requirements set out in the Health and Safety Code for eligibility for workers' compensation benefits. Because of the close relationship between the provisions of new sec.sec.122.2, 122.4 and sec.110.108, public comments regarding all three rules have been included in this preamble. For additional information regarding the adoption of sec.110.108 please refer to the preamble to the adoption of this rule contained elsewhere in this issue of the Texas Register Comments generally supporting the proposed new sec.sec.110.108, 122.3, and 122.4 were received from: City of Houston Fire Department - EMS; Harris County Risk Management and Benefits; and the American Insurance Association. Comments not specifically supporting or opposing the proposed new sec.sec.110.108, 122.3, and 122.4 but making recommendations regarding the rule were received from the following: Carol S. Lawrence; Texas Workers' Compensation Insurance Fund; Richardson Fire Department; and the Office of the Attorney General of Texas (Workers' Compensation Division). Summaries of the comments and commission responses are as follows: GENERAL COMMENT: One commenter supported both rule 110.108 and rule 122.3, stating these new rules will better protect and support Texas emergency medical personnel. Another commenter supported the notice and testing requirements. RESPONSE: Staff notes support for the rules, as proposed. COMMENT: Commenter supported the rules, emphasizing the need for determining that there's not a preexisting condition for the alleged exposure and indicating that this rule would help insurers in their investigation of an employee's alleged occupational exposure to HIV/AIDS, but should not take the place of an investigation. RESPONSE: Staff agrees that the purpose of the testing requirement is to establish the presence or absence of disease; however, the issue of investigation is not addressed by this rule. Investigation is neither prohibited nor required by the rule. DISEASES COMMENT: Commenter stated it was easy to pinpoint exposures to HIV or hepatitis B, but expressed concern with 10 day testing and reporting requirement for tuberculosis. The commenter stated that it was very difficult to pinpoint the exact time of exposure for tuberculosis because it is an airborne transmissible disease. The commenter believed that reporting based on findings discovered during annual or semi-annual examinations would be more appropriate. RESPONSE: Staff agrees in part. The acute nature of a number of the reportable diseases, the variable incubation times of the diseases' causative agents, methods of transmission and possible immunization were all considered in drafting the proposed rules. However, the Health and Safety Code, 81.050 specifically refers to "reportable diseases". "Reportable diseases" by statute (Health and Safety Code, sec.81.041) are to be specified by the Texas Department of Health. The diseases listed in new sec.122.3 are those diseases designated by the Texas Department of Health as "reportable diseases". The Health and Safety Code requires certain employees to obtain a test following exposure to a reportable disease, if the employee desires to retain the option of receiving workers' compensation benefits should the exposure result in a compensable injury. TWCC rules cannot change this statutory mandate. The Commission fully recognizes the concerns of the commenter and will forward the commenter's comments and information provided on tuberculosis to the Department of Health for their consideration. To clarify that issues such as those raised by the commenter can be considered by a decision-maker and to clarify that the subject matter of such issues is not limited to the incubation period of a particular disease, the last sentence of subsection 122.3(c)(1) has been deleted and "These rules do not prohibit the consideration by a decision-maker of additional factors" has been added. COMMENT: One commenter asked whether a definitive test is available to demonstrate that the exposed worker is free from infection for each communicable disease listed in 25 TAC sec.97.11(b)(1)-(4) (Texas Department of Health) and, by reference, TWCC's proposed rules 110.108 and 122.3. The commenter contends that, if there is not a positive/negative' test for each disease, a statutory change and/or amendment to 25 TAC sec.97.11 and sec.97.13 (Texas Department of Health) may be necessary. RESPONSE: Staff Agrees in part. Although definitive tests are available to demonstrate the absence of infection at the time of exposure for many of the diseases on the list of reportable diseases, definitive tests are not available for all of the listed diseases. In addition, due to variance in pathogenicity of the infectious organisms, signs and symptoms may be present within 24- 48 hours rendering a diagnostic test "within 10 days" moot. However, legislative action would be necessary to change the testing requirements contained in the Health and Safety Code. To clarify that issues such as those raised by the commenter can be considered by a decision-maker and to clarify that the subject matter of such issues is not limited to the incubation period of a particular disease, the last sentence of subsection 122.3(c)(1) has been deleted and "These rules do not prohibit the consideration by a decision-maker of additional factors" has been added. WHO IS COVERED COMMENT: One commenter pointed out for consideration that the Texas Health and Safety Code, sec.81.050(j) does not define "employee," but that Section 401.102 (a) of the Texas Labor Code defines employee as "each person in the service of another under a contract of hire, whether express or implied, or oral or written." The commenter also cited Appeals Panel case #94647 as applying the Health and Safety Code, sec.81.050 (j) to all employees. RESPONSE: Staff disagrees. Section 81.050(b) adequately defines the occupations for which these provisions apply and, therefore, the employees involved. Staff disagrees that Appeals Panel case #94647 addressed the issue of the applicability of Health and Safety Code sec.81.050. This Appeals Panel decision was based on the fact that the appeal was not timely filed. Although the Appeals Panel reviewed the evidence and referred to sec.81.050(j), the references did not represent a finding by the Appeals Panel regarding the applicability of Health and Safety Code, sec.81.050. The staff believes the intent of sec.81.050 is stated in its title of "Mandatory Testing of Persons Suspected of Exposing Certain Other Persons to Reportable Diseases, Including HIV Infection" (emphasis added), and that "certain other persons" are those engaged in the specific occupations listed in sec.81.050(b). In addition, sec.81.050(k) states that a person listed in sec.81.050(b) who may have been exposed to a reportable disease may not be required to be tested. This reference back to sec.81.050(b) further supports the limited application of sec.81.050. The Texas Department of Health in promulgation of its rules at 25 TAC Chapter 97 has also interpreted the application of the Health and Safety Code, sec.81.050 to be limited to those persons described in sec.81.050(b). COMMENT: One commenter believed that sec.122.3 should be expanded to apply to all state workers, rather than just law enforcement officers, fire fighters, emergency medical service employees, paramedics and correctional officers. The commenter reasoned that other state workers are exposed to the diseases listed in subsection (b) of this rule, and they should also be held responsible to provide documentation of exposure and "baseline" testing. The commenter also suggested that Rules 122.3 and 122.4 be combined. Commenter felt that there should be one rule for all reportable diseases, including HIV. Commenter saw no logical basis for separating HIV and other reportable diseases nor for creating separate rules for state employees exposed to HIV and emergency responders exposed to a reportable disease. Employees of certified self-insurers and employees covered under workers' compensation insurance should also be included. RESPONSE: Staff disagrees. Inclusion of all employees in sec.122.3 would expand the application of the Texas Health and Safety Code, sec.81.050 and sec.85.116 and further restrict workers' compensation benefit eligibility. The separation of HIV and other reportable diseases, and the use of two rules is necessitated by the Health and Safety Code, which separates the provisions that apply to specified groups of employees. COMMENT: One commenter suggested that the coverage of the proposed rules be broadened to cover other employee and employer groups beyond emergency responders. The commenter felt that carriers will likely require any employee to meet the proof required in Texas Health and Safety Code, Chapter 81, Communicable Diseases, sec.81.050 (j), before benefits are initiated and, therefore, the Commission's proposed rules may disadvantage employees who are not "emergency responders" because such employees may be unaware of the statutory requirement. RESPONSE: Staff disagrees. The staff believes the intent of sec.81.050 is stated in its title of "Mandatory Testing of Persons Suspected of Exposing Certain Other Persons to Reportable Diseases, Including HIV Infection" (emphasis added), and that "certain other persons" are those engaged in the specific occupations listed in sec.81.050(b). In addition, sec.81.050(k) states that a person listed in sec.81.050(b) who may have been exposed to a reportable disease may not be required to be tested. This reference back to sec.81.050(b) further supports the limited application of sec.81.050. The Texas Department of Health, in promulgation of its rules at 25 TAC Chapter 97, has also interpreted the application of the Health and Safety Code, sec.81.050 to be limited to those persons described in sec.81.050(b). COMMENT: One commenter suggested that the definition of "emergency responders" in 25 TAC sec.97.13(b)(2) (Texas Department of Health) and in TWCC's proposed Rules 110.108 and 122.3 are not exactly the same. The commenter pointed out that the definition in TWCC's proposed rules does not include volunteers for an employer with the responsibility of answering emergency calls for assistance. RESPONSE: Staff disagrees. Although the applicability of new sec.122.3, sec.122.4, and sec.110.108 is limited to emergency responders who are state employees or employees covered by workers' compensation insurance, the definition of "emergency responder" is the same in the Texas Department of Health rules and these new rules. Section 122.3(a) specifically includes employees providing services as a volunteer who are covered by workers' compensation insurance. The Texas Labor Code, sec.406.097 provides that an emergency service organization which is not a political subdivision or which is separate from any political subdivision may elect to obtain workers' compensation insurance coverage for its named volunteer members who participate in the normal function of the organization. The Texas Labor Code, sec.504.012 provides that a political subdivision may cover volunteer fire fighters, police officers, emergency medical personnel, and other volunteers that are specifically named. Therefore, the persons covered by the two sets of rules are essentially the same. COMMENT: Commenter requested that a definition of "emergency responder" be included and, if the rule is limited to the occupations listed in sec.122.3, that a definition of "law enforcement officer" and "emergency medical service employee" also be included. RESPONSE: Staff disagrees that additional definitions are necessary. Rule 122.3(f) refers to the Texas Department of Health rules, 25 TAC Chapter 97, Communicable Diseases, for applicable requirements. Section 97.13 of those rules provides the definition of "emergency responder" as "an emergency medical services employee, paramedic, fire fighter, correctional officer, or law enforcement officer who is employed by or volunteers for an employer with the responsibility of answering emergency calls for assistance". Application of the new rules is limited to the occupations set out in sec.122.3(a). It is not necessary to further define "law enforcement officer" or "emergency medical employee". EXPOSURE CRITERIA COMMENT: Commenter stated that the proposed rule should incorporate the provisions of the Texas Department of Health rule, 25 TAC sec.97.11, which identifies the exposure criteria for the reportable diseases listed in 122.3(b). Another commenter suggested the rule include language that defines, clarifies, and establishes objective criteria of what constitutes exposure to reportable diseases. RESPONSE: Staff agrees in part. The Texas Health and Safety Code sec.81.050 requires the Texas Health Department to prescribe the criteria that constitute exposure to reportable diseases. Subsection (b) of new Rule 122.3 lists the reportable diseases as currently determined by the Texas Department of Health, and the last sentence of subsection (b) states that "To determine the most current list of reportable diseases and the exposure criteria, refer to the Texas Department of Health rules, 25 TAC Chapter 97, Communicable Diseases." Subsection (c)(1) of Rule 122.3 states that "Exposure criteria and testing protocol must conform to Texas Department of Health requirements." The referenced rules clearly define reportable diseases and the exposure criteria for reportable diseases. It is therefore unnecessary to restate the Texas Department of Health rules in this section. COST COMMENT: Commenter, as a self-insured political subdivision, stated the desire to have the flexibility to pay for the cost of testing through alternate methods such as through the group health plan, contracting with a medical provider or by way of in-house medical providers, stating that it would allow better management of costs. RESPONSE: Payment of costs of testing for covered emergency responders of political subdivisions must be in accordance with a method which complies with Texas Labor Code sec.504.011 and new Commission rules sec.sec.122.3 and 122.4. Texas Labor Code sec.504.011 provides three methods by which a political subdivision shall extend workers' compensation benefits to its employees. However, the payment for such benefits must be made by an insurance carrier as that term is defined in Texas Labor Code sec.410.011(27), except as otherwise authorized in the Texas Workers' Compensation Act. COMMENT: One commenter felt the proposed sec.122.3 seemed to contradict the Texas Workers' Compensation Act, under sec.408.021, which states that a carrier is only liable for medical benefits for a compensable injury, by requiring the carrier to pay for a medical procedure that may not be related to a compensable injury. The commenter also felt the rule contradicts the Health and Safety Code, sec.85.116(a) which requires that the state agency pay for the costs of testing and counseling for an alleged HIV exposure. Additionally, the commenter felt the wording concerning costs in subsection (d) of sec.122.3 does not make it clear whether a self insured state agency or the Office of the Attorney General must pay for testing, noting the difference between the state agency as employer and the Office of Attorney General as carrier. RESPONSE: Staff disagrees. The Texas Health and Safety Code, sec.85.116 is the basis for the portions of the rules dealing with costs of testing for state employees. Section 85.116(d) specifically states that employee testing and counseling shall be paid from funds appropriated for payment of workers' compensation benefits to state employees. The fact that the subsection states that the director of the workers' compensation division of the Attorney General's Office shall adopt rules necessary to administer this subsection, further emphasizes that office's role and responsibility in this area. At the time the statute was written, the Office of Attorney General was both the employer and the carrier. Subsequent changes to the Texas Workers' Compensation Act, sec.501.042 modified the relationship of the Office of the Attorney General to other state agencies to only that of the carrier and identified the individual state agencies as the employer. In addition, recent changes to sec.501.042 place responsibility for state employee's with claims at the State Office of Risk Management. These changes in the status of the Office of the Attorney General have not yet been reflected in the Health and Safety Code. sec.85.116(a). Those state agencies who do not receive injury claim service from the State Office of Risk Management also have funds appropriated for workers compensation and should use those funds to meet the statutory requirements. The intent of the rules is to provide medical service to those employees whose exposure occurred within the course and scope of their employment. Payment for these medical services equates to medical only claim payments which currently are processed within the system. If the carrier determines that the exposure was not within course and scope, it may contest payment of services using established procedures. COMMENT: Commenter questioned how long an employer would be required to pay for testing for a given exposure since the incubation periods for reportable diseases vary greatly. RESPONSE: The purpose of the testing is to establish that the employee was free from the disease at the time of the exposure. Although not more than one test is anticipated to be required for determination of the presence of a particular disease, if additional testing is required to make such determination, the employer would be liable for the cost of the testing. STATEMENTS COMMENT: Commenter states that Rule 122.4(b)(2), like rule 122.3(c)(2), should require the employee to provide the employer a sworn affidavit of the date and circumstances of the exposure, rather than just requiring a written statement. RESPONSE: Staff disagrees. The Health and Safety Code provides separate specific report procedures in sec.81.050(j) for emergency responders exposed to a reportable disease and in sec.85.116(c) for state employees exposed to HIV. The procedures vary in their requirement of sworn versus unsworn statements of exposure. The new rule is adopted under the Texas Labor Code, sec.402.061, which authorizes the Commission to adopt rules necessary to administer the Act; the Texas Labor Code sec.406.005, which requires employers to provide notice of workers' compensation coverage to employees; the Texas Labor Code sec.406.009, which requires the Commission to collect and maintain information, to monitor compliance with Subchapter A of Chapter 409, and to adopt rules as necessary to enforce the subchapter; the Texas Labor Code sec.406.031, which provides that an insurance carrier is liable for compensation for a covered employee's injury arising in the course and scope of employment; the Texas Labor Code sec.409.001, which requires an injured employee to notify the employer of an injury; the Texas Labor Code, sec.412.006, which authorizes the Commission to adopt rules to implement the risk management requirements for a state agency; the Texas Labor Code sec.504.011, which provides the methods by which political subdivisions are required to provide workers' compensation benefits to its employees; the Texas Labor Code sec.504.012, which allows political subdivisions to provide specifically named volunteers with workers' compensation coverage; the Texas Health and Safety Code sec.81.050(j), which requires that for the purpose of qualifying for workers' compensation an employee who claims a possible work- related exposure to a reportable disease must provide the employer with a sworn affidavit of the date and circumstances of the exposure and document that, not later than the 10th day after the date of the exposure, the employee had a test result that indicated an absence of the reportable disease; and the Texas Health and Safety Code, sec.85.116, which requires that for the purpose of qualifying for workers' compensation an employee of the state who claims a possible work- related exposure to HIV must provide the employer with a written statement of the date and circumstances of the exposure and document that, not later than the 10th day after the date of the exposure, the employee had a test result that indicated an absence of HIV infection; that the state agency pay the costs of testing and counseling; and that the Texas Department of Health establish the criteria that constitute exposure to HIV; the Texas Government Code sec.607.001, which defines "public safety employee"; the Texas Government Code sec.607.002, which provides for reimbursement to a public safety employee of reasonable medical expenses incurred in preventative treatment because of exposure to a contagious disease. sec.122.3. Exposure to Communicable Diseases: Reporting and Testing Requirements for Emergency Responders. (a) This section applies to all law enforcement officers, fire fighters, emergency medical service employees, paramedics, and correctional officers who are either state employees or employees covered under workers' compensation insurance (to include those who are providing services as a volunteer and are covered by workers' compensation insurance). (b) For purposes of this section "reportable disease" means communicable diseases and health conditions required to be reported to the Texas Department of Health by the Texas Health and Safety Code, sec.81.041, as amended, including: acquired immune deficiency syndrome (AIDS); amebiasis; anthrax; botulism - adult and infant; brucellosis; campylobacteriosis; chancroid; chickenpox; Chlamydia trachomatis infection; cholera; cryptosporidiosis; dengue; diphtheria; ehrlichiosis; encephalitis; Escherichia coli 0157:H7; gonorrhea; Hansen's disease (leprosy); Heamophilus influenzae type b infection, invasive; hantavirus infection; hemolytic uremic syndrome (HUS); hepatitis, acute viral; human immunodeficiency virus (HIV) infection; legionellosis; listeriosis; Lyme disease; malaria; measles (Rubeola); meningitis; meningococcal infection, invasive; mumps; pertussis; plague; poliomyelitis, acute paralytic; rabies in man; relapsing fever; Rocky Mountain spotted fever; rubella (including congenital); salmonellosis, including typhoid fever; shigellosis; streptococcal disease, invasive Group A; syphilis; tetanus; trichinosis; tuberculosis; tuberculosis infection in persons less than 15 years of age; typhus; Vibrio infection; viral hemorrhagic fevers; and yellow fever. This list of diseases may change from time to time. To determine the most current list of reportable diseases and exposure criteria refer to Texas Department of Health rules, 25 TAC Chapter 97, Communicable Diseases. (c) An employee listed in subsection (a) of this section will not be entitled to workers' compensation benefits for a reportable disease unless the employee: (1) had a test performed within 10 days of an exposure to the reportable disease that indicated the absence of the reportable disease (Exposure criteria and testing protocol must conform to Texas Department of Health requirements. This rule does not prohibit a decision-maker's consideration of other factors.); and (2) provided the employer with a sworn affidavit of the date and circumstances of the exposure and a copy of the results of the test required by paragraph (1) of this subsection. (d) The employer's insurance carrier, including state and political subdivision employers, shall be liable for the costs of test(s) required by subsection (c) of this section, regardless of the results of the test(s), in addition to any other benefits required to be paid by the Texas Workers' Compensation Act or administrative rules. The cost of a state employee's testing, regardless of the results of the test, shall be paid from funds appropriated for payment of workers' compensation benefits to state employees. (e) Section 110.108 of this title (relating to Employer Notice Regarding Work- Related Exposure to Communicable Diseases/ HIV: Posting Requirements; Payment for Tests) requires each employer with employees covered by this section to post the notice contained in subsection (d) of that section in its workplace to inform employees of the requirements of this section. (f) Emergency responders and employers of emergency responders should also refer to the Texas Health and Safety Code Chapter 81 and Texas Department of Health rules, 25 TAC Chapter 97, Communicable Diseases, to ensure compliance with all applicable requirements. sec.122.4. State Employees Exposed to Human Immunodeficiency Virus (HIV): Reporting and Testing Requirements. (a) This section applies to all employees of the state of Texas. (b) A state employee shall not be entitled to workers' compensation benefits for a work-related exposure to human immunodeficiency virus (HIV) infection unless the employee: (1) had a test performed within 10 days of an exposure to HIV that indicated the absence of HIV infection (Exposure criteria and testing protocol must conform to Texas Department of Health requirements.); and (2) provided the employer with a written statement of the date and circumstances of the exposure to HIV and a copy of the results of the test required by paragraph (1) of this subsection. (c) The cost of a state employee's test(s) required by subsection (b) of this section, regardless of the results of the test(s), shall be paid from funds appropriated for payment of workers' compensation benefits to state employees, in addition to any other benefits required to be paid by the Texas Workers' Compensation Act or administrative rules. (d) Section 110.108 of this title (relating to Employer Notice Regarding Work Related Exposure to Communicable Disease/ HIV: Posting Requirements; Payment for Tests) requires each state agency to post the notice contained in subsection (d) of that section in its workplace to inform employees of the requirements of this section. (e) State employers and state employees should also refer to the Texas Health and Safety Code Chapter 85 and Texas Department of Health rules, 25 TAC Chapter 97, Communicable Diseases, to ensure compliance with all applicable requirements. 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 September 12, 1997. TRD-9712197 Susan Cory General Counsel Texas Workers' Compensation Commission Effective date: October 15, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 440-3700 TITLE 31. NATURAL RESOURCES AND CONSERVATION PART II. Texas Parks and Wildlife Department CHAPTER 65.Wildlife SUBCHAPTER A.Statewide Hunting and Fishing Proclamation Seasons and Bag Limits-Hunting Provisions 31 TAC sec.sec.65.42, 65.62, 65.64 The Texas Parks and Wildlife Commission adopts amendments to sec.sec.65.42, 65.62, and 65.64, concerning Deer, Quail, and Turkey, without change to the proposed text as published in the July 18, 1997, issue of the Texas Register (22 TexReg 6728). The amendments will function by establishing and regulating a youth-only hunting season for white-tailed deer, quail, and turkey. The amendments are necessary in order to implement certain provisions of House Bill 2542, enacted by the 75th Legislature, which allow for the creation of youth-only hunting seasons. The department received 36 comments concerning adoption of the proposed amendments. Two persons opposed adoption, stating that youth should not be encouraged to engage in sport hunting. The department disagrees with the comments and responds that the agency has a statutory duty to provide for reasonable and equitable enjoyment of the wildlife resources of this state. No changes were made as a result of the comments. Thirty-four persons commented in favor of the proposed amendments. The Texas Wildlife Association commented in favor of adoption. Texas Animals opposed adoption of the proposed amendments. The amendments are adopted under Section 80 of House Bill 2542, Acts of the 75th Texas Legislature, Regular Session, which authorizes the commission to provide for special open seasons during which the taking of wildlife resources is limited to persons younger than 17 years of age. 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 September 11, 1997. TRD-9712241 Bill Harvey, Ph.D. Regulatory Coordinator Texas Parks and Wildlife Department Effective date: October 2, 1997 Proposal publication date: July 18, 1997 For further information, please call: (512) 389-4642 SUBCHAPTER N.Migratory Game Bird Proclamation The Texas Parks and Wildlife Commission adopts the repeal of sec.65.317, sec.65.320, new sec.65.317, new sec.65.320, and an amendment to sec.65.318, concerning Migratory Game Bird Proclamation. New sec.sec.65.317, new sec.65.320, and the amendment to sec.65.318 are adopted with changes to the proposed text as published in the May 2, 1997, issue of the Texas Register (22 TexReg 3875). The repeal of sec.65.317 and sec.65.320 is adopted without changes and will not be republished. The change to sec.65.317, concerning Zones and Boundaries for Late Season Species, divides that portion of the state not within the High Plains Mallard Management Unit into two new duck zones. The change to sec.65.318, concerning Open Seasons and Bag and Possession Limits - Late Season, increases the length of the season for ducks, mergansers, and coots by 14 days; increases the aggregate bag limit to six ducks; increases the bag limit for pintails to three and the bag limit for mallard hens to two; implements a youth-only special season for ducks; and reduces the season lengths and bag limits for woodcock . The change to sec.65.320, concerning Extended Falconry Season - Late Season Species, adjusts season lengths to conform with changes made to the firearms season. The repeal, new sections and amendment function to establish the zone and area boundaries, bag limits, opening and closing dates, and season lengths for the harvest of late season species of migratory game birds. The repeal, new sections, and amendment are generally necessary to regulate the harvest of migratory birds in this state. Section 65.317, concerning Zones and Boundaries for Late Season Species, establishes geographical distinctions within which various harvest regulations are imposed for the purposes of sound biological management of the resource. Section 65.318, concerning, Season Length and Bag and Possession Limits-Late Season, equitably distributes harvest of the resource while establishing biologically justifiable limits on that harvest. Section 65.320, concerning Extended Falconry Season-Late Season Species, provides opportunity for persons to harvest the resource by means of falconry while establishing biologically justifiable limits on that harvest. The department received 287 comments concerning adoption of the proposed rules. One person opposed the creation of new duck zones in east Texas. The department disagrees with the comment and responds that strong support for the change exists among the regulated community. No changes were made as a result of the comment. Seventy-five commenters requested some form of season lengths, season configurations, and/or opening days other than those adopted by the Commission. The department, while sympathetic to the desires of the regulated community, disagrees with the comments and responds that due to the size and diversity of the state, as well as to limits imposed by the federal government under the Migratory Bird Treaty Act, it is impossible to establish regulations that in every instance accommodate the circumstances of every constituent. The Commission's first duty is to protect the resource, and its second duty is to equitably distribute opportunity; the regulations as adopted represent the Commission?s discharge of those duties. No changes were made as a result of the comments. One-hundred thirty-three commenters requested a longer duck season. Action by the U.S. Fish and Wildlife Service, Office of Migratory Bird Management, made it possible for the department to agree with the commenters and the changes were made accordingly. Twenty-four persons requested that the department create duck zones outside of the High Plains Mallard Management Unit. Action by the U.S. Fish and Wildlife Service, Office of Migratory Bird Management, made it possible for the department to agree with the commenters and the changes were made accordingly. Five commenters requested the creation of a youth-only season for ducks, mergansers and coots. Action by the U.S. Fish and Wildlife Service, Office of Migratory Bird Management, made it possible for the department to agree with the commenters and the changes were made accordingly. One person suggested an alternative to the dates adopted for the youth hunts. The department disagrees with the comment and responds that the dates adopted for youth hunting opportunity are designed to encourage the greatest participation possible. Two commenters were in favor of the dates adopted for the youth hunts. One commenter requested a crane season in Liberty and Chambers counties. The department disagrees and responds that federal regulations do not allow crane hunting in that part of the state. No changes were made as a result of the comment. Fifty-seven commenters supported the rules as adopted. 31 TAC sec.sec.65.317, 65.320 The repeal, amendment, and new sections are adopted under Parks and Wildlife Code, Chapter 64, Subchapter C, which provides the Commission with authority to regulate seasons, means, methods, and devices for taking and possessing migratory game bird wildlife resources. 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 September 11, 1997. TRD-9712239 Bill Harvey, Ph.D. Regulatory Coordinator Texas Parks and Wildlife Department Effective date: October 2, 1997 Proposal publication date: May 2, 1997 For further information, please call: (512) 389-4642 31 TAC sec.sec.65.317, 65.318, 65.320 The amendment and new sections are adopted under Parks and Wildlife Code, Chapter 64, Subchapter C, which provides the Commission with authority to regulate seasons, means, methods, and devices for taking and possessing migratory game bird wildlife resources. sec.65.317. Zones and Boundaries for Late Season Species. (a) Ducks, mergansers, and coots. (1) High Plains Mallard Management Unit: that portion of Texas lying west of a line from the international toll bridge at Del Rio, thence northward following U.S. Highway 277 to Abilene, State Highway 351 and State Highway 6 to Albany, and U.S. Highway 283 from Albany to Vernon, thence eastward along U.S. Highway 183 to the Texas-Oklahoma state line. (2) North Zone: that portion of Texas not in the High Plains Mallard Management Unit but north of a line from the International Toll Bridge in Del Rio; thence northeast along U.S. Highway 277 Spur to U.S. Highway 90 in Del Rio; thence east along U.S. Highway 90 to Interstate Highway 10 at San Antonio; thence east along Interstate Highway 10 to the Texas-Louisiana State Line. (3) South Zone: the remainder of the state. (b) Geese. (1) Western Zone: that portion of Texas lying west of a line from the international toll bridge at Laredo, thence northward following IH 35 and 35W to Fort Worth, thence northwest along U.S. Highways 81 and 287 to Bowie, thence northward along U.S. Highway 81 to the Texas-Oklahoma state line. (2) Eastern Zone: the remainder of the state. (c) Sandhill cranes. (1) Zone A: that portion of Texas lying west of a line beginning at the international toll bridge at Laredo, thence northeast along U.S. Highway 81 to its junction with Interstate Highway 35 in Laredo, thence north along Interstate Highway 35 to its junction with Interstate Highway 10 in San Antonio, thence northwest along Interstate Highway 10 to its junction with U.S. Highway 83 at Junction, thence north along U.S. Highway 83 to its junction with U.S. Highway 62, 16 miles north of Childress, thence east along U.S. Highway 62 to the Texas- Oklahoma state line. (2) Zone B: That portion of Texas lying within boundaries beginning at the junction of Interstate Highway 35 and the Texas-Oklahoma state line, thence south along Interstate Highway 35 (following Interstate Highway 35 West through Fort Worth) to its junction with Interstate Highway 10 in San Antonio thence northwest along Interstate Highway 10 to its junction with U.S. Highway 83 in Junction, thence north along U.S. Highway 83 to its junction with U.S. Highway 62, 16 miles north of Childress, thence east along U.S. Highway 62 to the Texas- Oklahoma state line, thence eastward along the Texas-Oklahoma state line to Interstate Highway 35. (3) Zone C: that portion of Texas lying within boundaries beginning at the international toll bridge at Brownsville, thence north and east along U.S. Highway 77 to its junction with U.S. Highway 87 at Victoria, thence eastward along U.S. Highway 87 to its junction with Farm Road 616 at Placedo, thence north and east along Farm Road 616 to its junction with State Highway 35, thence north and east along State Highway 35 to its junction with State Highway 6 at Alvin, thence west and north along State Highway 6 to its junction with U.S. Highway 290, thence westward along U.S. Highway 290 to its junction with Interstate Highway 35 at Austin, thence south along Interstate Highway 35 to its junction with U.S. Highway 81 in Laredo, thence southwest along U.S. Highway 81 to the international toll bridge in Laredo, thence south and east along the U.S.-Mexico international boundary to its junction with the U.S. Highway 77 international toll bridge at Brownsville. (d) Woodcock: statewide. (e) Common snipe (Wilson's snipe or jacksnipe): statewide. sec.65.318. Open Seasons and Bag and Possession Limits - Late Season. The possession limit for all species listed in this section shall be twice the daily bag limit, except for light geese. The possession limit for light geese shall be four times the daily bag limit. (1) Ducks, mergansers, and coots. The daily bag limit for ducks is six, which may include no more than five mallards or Mexican mallards (Mexican duck), only two of which may be hens, one mottled duck, three pintails, two redheads, one canvasback, and two wood ducks. The daily bag limit for coots is 15. The daily bag limit for mergansers is five, which may include no more than one hooded merganser. (A) High Plains Mallard Management Unit: October 11-14, 1997 and October 18, 1997 - January 18, 1998. (B) North Zone: October 25-November 2, 1997 and November 15, 1997-January 18, 1998. (C) South Zone: October 25-November 30, 1997 and December 13, 1997-January 18, 1998. (2) Geese. (A) Western Zone. (i) Light geese: November 1, 1997 - February 15, 1998. The daily bag limit for light geese is ten. (ii) Dark geese: November 1, 1997 - February 15, 1998. The daily bag limit for dark geese is five, which may not include more than four Canada geese and one white-fronted goose. (B) Eastern Zone. (i) Light geese: November 1, 1997 - February 15, 1998. The daily bag limit for light geese is ten. (ii) Dark geese: November 1, 1997 - January 25, 1998. The daily bag limit for dark geese is two, which may not include more than one Canada goose and one white-fronted goose. During the period January 19-25, 1998, the daily bag limit is one Canada goose and one white-fronted goose, or two Canada geese. (3) Sandhill cranes. A special permit, issued free of charge by the Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744, is required of any person to hunt, shoot, or kill sandhill cranes in areas where an open season is provided under this proclamation. Permits will be issued on an impartial basis with no limitation on the number of permits that may be issued. The daily bag limit is three. (A) Zone A: November 8, 1997 - February 8, 1998. (B) Zone B: November 29, 1997 - February 8, 1998. (C) Zone C: January 3, 1998 - February 8, 1998. (4) Woodcock: December 18, 1997 - January 31, 1998. The daily bag limit is three. (5) Common snipe (Wilson's snipe or jacksnipe): October 25, 1997 - February 8, 1998. The daily bag limit is eight. (6) Special Youth-Only Season. There shall be a special youth-only duck season during which the hunting, taking, and possession of ducks, mergansers, and coots is restricted to licensed hunters 15 years of age and younger accompanied by a person 18 years of age or older. Bag and possession limits in any given zone during the season established by this paragraph shall be as provided for that zone by paragraph (1) of this section. Season dates are as follows: (A) High Plains Mallard Management Unit: October 4, 1997; (B) North Zone: October 18, 1997; and (C) South Zone: October 18, 1997. sec.65.320. Extended Falconry Season - Late Season Species. (a) It is lawful to take the species of migratory birds listed in this section by means of falconry during the following Extended Falconry Seasons: (1) ducks, coots, and mergansers: (A) High Plains Mallard Management Unit: no extended falconry season; and (B) Remainder of the state: January 19, 1998 - February 10, 1998; and (2) woodcock: November 24 - December 17, 1997 and February 1, 1998 - March 10, 1998. (b) The daily bag and possession limits for migratory game birds under this section shall not exceed three and six birds, respectively, singly or in the aggregate. 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 September 11, 1997. TRD-9712240 Bill Harvey, Ph.D. Regulatory Coordinator Texas Parks and Wildlife Department Effective date: October 2, 1997 Proposal publication date: May 2, 1997 For further information, please call: (512) 389-4642 TITLE 40. SOCIAL SERVICES AND ASSISTANCE PART III. Texas Commission on Alcohol and Drug Abuse CHAPTER 148.Facility Licensure SUBCHAPTER B.Facility Management 40 TAC sec.sec.148.111, 148.113-148.117 The Texas Commission on Alcohol and Drug Abuse Adopts amendments to sec.sec.148.111 and 148.113-148.117, concerning personnel and staff development. Sections 148.114-148.117 are adopted with changes to the proposed text as published in the July 1, 1997, issue of the Texas Register (22 TexReg 6180). Sections 148.111 and 148.113 are adopted without changes and will not be republished. The amendments are adopted to ensure training is required only for staff who need it, to eliminate the requirement for first aid training, to add provisions for training related to the care of pregnant women, and to clarify the wording of existing provisions. Section 148.114 has been revised to require one staff person to have documented knowledge of pregnant substance abusers and their care, rather than six hours of training. Wording has been added to specify that CPR certification is required only for direct care staff in residential programs. The words "listed below" have been replaced with "following". Training requirements in sec.sec.148.115 and 148.117 are revised to be consistent with previously stated requirements. Section 148.116 is revised to require personnel documentation instead of a single personnel file, and retention requirements have been clarified to avoid confusion regarding the retention requirements in sec.148.118. These rules describe requirements relating to the organizational structure, initial training, special training requirements, volunteers, personnel files and training records, and basic staffing requirements. The commission received comments from the Association of Substance Abuse Service Providers of Texas and Christian Farms Treehouse, which are summarized below. Comment: It is strongly recommended modifying the interagency memorandum of understanding to read "training up to eight hours shall depend on amount of client contact and also be appropriate to qualification and responsibilities of the job." Response: Eight hours is mandated by statute, and state agencies do not have the authority to modify the requirement. Comment: Training on pregnant substance abusers and their care is non-existent. Physician's medical advice should be followed, not attempted by non-medical personnel. Response: This rule was not intended to have unqualified staff supervising the medical care of clients. It simply recognizes that programs who admit pregnant females should have some basic knowledge about the special needs and complications associated with caring for these clients. Comment: This requirement is vague and is ultimately just another training requirement. It would seem more applicable to the intent of the rules to require programs to demonstrate that at least one clinical staff member is knowledgeable about the care of substance abusing females. The compliance manual could then specify what TCADA would accept as compliance documentation. Response: The commission accepts this recommendation. Comment: The requirement for training on intake and screening is excessive; this training does not need to be repeated annually. Response: The requirement for eight hours of training annually is found in statute and the commission does not have the authority to change it. Comment: Requiring personnel files to contain documentation of direct supervision is excessive. Recommend documentation of intern or trainee status and total number of supervised hours. Response: The rule has been revised so that all documentation does not need to be kept in the personnel file. The commission does not believe, however, that documenting the total number of supervised hours is sufficient documentation of clinical supervision, which is a critical element of an intern's preparation for licensure. Comment: Requiring personnel files to be kept for two years is contradictory with requirements for keeping evidence of training for abuse, neglect, and exploitation for five years. Response: Other requirements that specify longer retention periods for certain documentation also apply. This has been clarified in the rule. Comment: Strike references to first aid if not required. Response: The references have been omitted. 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.148.114.Special Training Requirements. (a) (No change.) (b) Staff shall have all required training before performing job duties independently. Training must be completed within 90 days from the date of hire. Unless otherwise specified, training in the following topics is required only once. (c) The facility shall annually provide staff who have any client contact with at least eight hours of approved training in issues relating to abuse, neglect, exploitation, illegal, unprofessional, and unethical conduct. This training shall comply with the interagency memorandum of understanding on abuse training (see sec.148.118 of this title relating to Training Requirements Relating to Abuse, Neglect, and Unprofessional or Unethical Conduct). (d) All direct care staff shall complete HIV training based on the commission's AIDS/HIV Model Workplace Guidelines. (e) (No change.) (f) All direct care employees in residential programs shall have current certification in CPR. (1)-(2) (No change.) (g)-(h) (No change.) (i) Supervisors shall observe and document that counselors demonstrate competency in the facility's treatment modalities before working without immediate supervision. (j) Each employee who conducts intakes or screenings shall complete eight hours of training in the program's intake and screening procedures annually. An employee shall not conduct screening or intake unless training is complete and current. (k) All direct care employees working in detoxification programs shall complete detoxification training which shall: (1) be provided by a physician, physician assistant, advanced practice nurse, or registered nurse with at least one year of documented experience in detoxification; (2) include: (A) signs of withdrawal; (B) pregnancy-related complications (if the program admits females of child- bearing age); (C) observation and monitoring procedures; (D) appropriate intervention; and (E) complications requiring transfer. (l) All programs that admit females of child-bearing age shall have at least one staff person with documented knowledge of pregnant substance-abusing females and their care. When a pregnant female is admitted, all members of the treatment team shall receive information needed to provide appropriate care. (m) (No change.) sec.148.115.Students and Other Volunteers. (a) The facility shall ensure that volunteers (which include students) comply with standards of performance and conduct. (b)-(d) (No change.) (e) Volunteers shall be appropriately supervised by staff. Direct care volunteers in residential programs who do not have certification in CPR shall have immediate supervision from certified staff. sec.148.116.Personnel Files and Training Records. (a) The facility shall ensure that staff are qualified, trained, and supervised to perform assigned duties. (b) The facility shall maintain current personnel documentation on each employee that includes, as applicable: (1)-(6) (No change.) (7) records of direct supervision for all counselor trainees and interns; (8)-(9) (No change.) (c)-(d) (No change.) sec.148.117.Basic Staffing Requirements. (a)-(d) (No change.) (e) All chemical dependency counselor trainees and interns shall work under the direct supervision of a qualified credential counselor. (1)-(2) (No change.) (f) Counselors providing group or individual counseling focused on trauma, abuse, or sexual issues shall have specialized education and training which is defined in writing by the program. (g) One or more direct care staff trained in non-violent crisis intervention shall be on duty at all times that the program is in operation. In residential programs, one or more direct care staff certified in CPR must also be on duty at all times that the program is in operation. (h) Staff included in staff-to-client ratios shall not have job duties that interfere with effective client supervision. (i) The facility shall not allow its clients to serve as staff. (j) The facility shall ensure that personnel do not endanger the health, safety or well-being of clients and do not use mood-altering substances which interfere with their job performance. 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 September 17, 1997. TRD-9712355 Mark S. Smock Deputy for Finance and Administration Texas Commission on Alcohol and Drug Abuse Effective date: October 7, 1997 Proposal publication date: July 1, 1997 For further information, please call: (512) 349-6609 SUBCHAPTER D.Programs Services Treatment Levels 40 TAC sec.sec.148.211-148.214 The Texas Commission on Alcohol and Drug Abuse adopts amendments to sec.sec.148.211-148.214, concerning treatment levels. Sections 148.212-148.214 are adopted with changes to the proposed text as published in the July 8, 1997, issue of the Texas Register (22 TexReg 6415). Section 148.211 is adopted without changes and will not be republished. The amendments are adopted to require Level II, III, and IV programs to provide counseling, to limit counselor caseloads to 20 clients in residential Level IV programs, and to clarify existing requirements. Language has been restored to sec.sec.148.212, 148.213, and 148.214 describing the type of client appropriate for each level of treatment. The counseling hours required in sec.148.212 and 148.214 have been lowered from the proposed version. Section 148.214 expands allowed services to include life skills training as is allowed in the other levels of service. These rules describe service requirements that apply to four specific levels of service. The commission received comments from the Association of Substance Abuse Service Providers of Texas, Burke Center, and Christian Farms Treehouse, which are summarized below. Comment: Do not omit language that describes the type of client appropriate for each level of treatment. Response: The commission accepts this suggestion. Comment: The proposed rules specifies minimum hours of counseling for each level. There appears to be a hybrid activity that is not purely counseling or education in the traditional sense. This activity combines elements of counseling and education and plays a significant role in various treatment modalities. In the context of an overall program, we believe this activity needs to be recognized. Response: The commission believes most of these hybrid activities would be classified as "life skills training". Recognizing that such activities can be as important as traditional counseling, the rules have been revised to require three hours of counseling and fourteen hours of additional counseling, education, or life skills training for Level II, and two hours of counseling and eight hours of additional counseling, education, or life skills training for Level III. It is believed this will give providers greater flexibility in implementing their programs. Comment: As written, this standard does not allow for sufficient flexibility to provide for decreasing transitional services and PRN drop in counseling. The concept of "averaging" is fine in theory, however, in real life it sets up a tendency to "front load" services that may or may not really be necessary. The recommendation was to not require minimum hours of service; instead allow for the program to implement services sufficient to meet the clients individual needs as identified in the treatment plan. Response: The commission believes that eliminating all requirements for minimum hours does not ensure clients will receive adequate treatment. While many providers would provide excellent care without any rules whatsoever, we are charged with the responsibility to protect clients from those who are unable to deliver appropriate treatment without some structure. The concept of averaging hours over the course of a client's stay allows a smoother transition from one level of service to another and also accommodates other fluctuations in the intensity of services needed by an individual client during treatment. The number of hours required at each level was recommended by a diverse group of providers, and the recommendations were built around the concept of averaging. It is expected that most clients at a given level of treatment will need more than the listed number of hours during some phases and less than the listed number during others. Comment: It is agreed that the requirement of one hour per week of individual counseling constitutes sound practice of this level of care; however, there is concern that meeting this requirement will force hiring of additional staff and add to the expense of providing services to a program which is already woefully underfunded. Response: The commission does not think a provider can meet the requirements for individualized treatment without at least one hour of individual counseling per week. The program is required to develop an individualized treatment plan, review the client's progress and make revisions to the plan, develop an individualized discharge plan, and help clients resolve individual issues during the course of treatment. These activities cannot take place without regular one- to-one contact. 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.148.212.Level II Treatment. (a) All clients admitted to Level II shall be: (1) medically stable; and (2) able to participate in treatment. (b) The program shall have enough staff to provide close supervision and individualized treatment. (c) Counselor caseloads shall not exceed ten clients for each counselor. (d) Direct care staff shall be awake and on site during all hours of program operation. The direct care staff-to-client ratio shall be at least 1:16 during: (1) the hours clients are awake in residential programs; and (2) all hours of operation in outpatient programs. (e) Counselors shall complete a comprehensive client assessment within three individual service days of admission for all clients transferred from Level I or admitted directly to a Level II program. (f) An individualized treatment plan shall be completed for all clients within five individual service days of admission. (g) The facility shall deliver an average of 20 hours of structured activities per week for each client, including: (1) three hours of chemical dependency counseling (including at least one hour of individual counseling); (2) 14 hours of additional counseling, chemical dependency education, or life skills training; and (3) three hours of structured social and/or recreational activities. (h) Each residential client shall have an opportunity to participate in physical recreation at least weekly. (i) Program staff shall offer related services to identified significant others. sec.148.213.Level III Treatment. (a) All clients admitted to Level III shall be: (1) medically stable, and (2) able to function with limited supervision and support. (b) The program shall have enough staff to meet treatment needs within the context of the program description. (c) Counselor caseloads shall not exceed 16 clients per counselor. (d) Direct care staff shall be awake and on site during all hours of program operation. The direct care staff-to-client ratio shall be at least 1:16 during: (1) the hours clients are awake in residential programs; and (2) all hours of operation in outpatient programs. (e) For clients transferred from Level I or admitted directly to this level of treatment, counselors shall complete a comprehensive client assessment within five individual service days of admission. (f) All clients shall have an individualized treatment plan within seven individual service days of admission. (g) The facility shall deliver an average of ten hours of structured activities per week for each client, including at least two hours of chemical dependency counseling (with at least one hour of individual counseling every two weeks) and eight hours of additional counseling, chemical dependency education, or life skills training. sec.148.214.Level IV Treatment. (a) All clients admitted to Level IV programs shall be: (1) medically stable; and (2) able to function with minimal structure and support. (b) A Level IV program shall not admit a client transferred directly from Level I without written justification in the client record. (c) The program shall have enough staff to provide clients with adequate support and guidance. (d) Counselor caseloads shall not exceed 20 clients per counselor in residential programs. Outpatien 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 September 17, 1997. TRD-9712356 Mark S. Smock Deputy for Finance and Administration Texas Commission on Alcohol and Drug Abuse Effective date: October 7, 1997 Proposal publication date: July 1, 1997 For further information, please call: (512) 349-6609 SUBCHAPTER E.Treatment Process Admission 40 TAC sec.sec.148.281-148.283 The Texas Commission on Alcohol and Drug Abuse adopts amendments to sec.sec.148.281-148.283, concerning admission practices. Sections 148.281 and 148.283 are adopted with changes to the proposed text as published in the July 4, 1997, issue of the Texas Register (22 TexReg 6261). Section 148.282 is adopted without changes and will not be republished. The amendments are adopted to clarify existing requirements and to require use of the Diagnostic and Statistical Manual of Mental Disorders and implementation of a referral log. Section 148.281 has been revised to permit chemically dependent persons in need of crisis stabilization to be admitted to a Level I program for up to 72 hours. Language in sec.148.283 has been revised to allow written information to be provided to clients in documents other than the consent form. These rules establish requirements relating to admission, screening, and intake and consent to treatment. The Commission received comments from the Burke Center and Christian Farms Treehouse, which are summarized below: Comment: The proposed change is opposed as it would eliminate crisis stabilization as a criteria for Level I services. When an individual enters Level II services we expect the person to be high functioning-able to attend classes and group sessions and participate fully in treatment activities-whereas a person entering Level I services may not be able to function independently or may not be able to participate at all due to his/her physical or emotional state. Individuals in crisis need a high level of individualized attention and support services to ensure continued treatment and provide a grounding orientation to chemical dependency treatment. Level I has a higher direct-care staff to patient ratio than Level II (l:12 vs. l:16), and requires progress notes to be documented during each shift. We believe that this level of service is appropriate for an individual in crisis. Response: The commission accepts this comment and has revised the rule to allow a chemically dependent person in need of crisis stabilization to be admitted to a Level I program for up to 72 hours. Comment: Is was asked if there is a requirement or need for training on use of the DSM IV. Response: Individuals performing screening and intake are required to have eight hours of training per year. This could include training on the use of DSM IV. Comment: As worded, this standard regarding consent to treatment appears to require all of the specific information to actually be on the form, rather than documenting that the client has received all of the specific information. Recommend it be worded as "A consent form will be prepared for each client before admission. The form shall contain evidence, by the client/consenter's signature, that all of the following information was explained to them Š" Response: The commission accepts this recommendation and has revised the rule. Comment: Do not require the name of the primary counselor to be on the consent form. It is inappropriate for intake counselors to name the primary counselor; this should be a staff decision. Response: This is required by law. If the primary counselor cannot be identified at the time of admission, an interim contact should be listed on the form. 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.148.281.Admission. (a)-(b) (No change.) (c) Every individual admitted to a Level I treatment program shall meet the DSM- IV criteria for substance intoxication or withdrawal. Persons in need of crisis stabilization who meet the criteria for substance dependence may be admitted to Level I services for up to 72 hours. (d) Every person admitted to a Level II, III, or IV treatment program shall meet the DSM-IV criteria for substance abuse or dependence. sec.148.283.Intake and Consent to Treatment. (a) (No change.) (b) The facility shall obtain written authorization from the consenter before providing any treatment or medication. (c) A consent form will be prepared for each client before admission. The form must document that the client has received the following information written in simple, non-technical terms: (1) the specific condition to be treated; (2) the program's services and treatment process; (3) the expected benefits of the treatment; (4) the probable health and mental health consequences of not consenting; (5) the side effects and risks associated with the treatment; (6) any generally accepted alternatives and whether an alternative might be appropriate; (7) the estimated average daily charge, including an explanation of any services that may be billed separately; (8) the qualifications of the staff who will provide the treatment; (9) the name of the primary counselor; (10) expectations for client participation; and (11) the Client Bill of Rights as specified in sec.148.142 of this title (relating to Client Bill of Rights). (d) This information will be explained to the client and consenter in simple, non-technical terms. If possible, all information shall be provided in the consenter's primary language. (e) The consent form shall be dated and signed by: (1) the client; (2) the consenter; and (3) the staff person providing the information. (f) The facility shall not use coercive or undue influence to obtain consent. (g) The facility shall not knowingly misrepresent the amount of insurance coverage available or the amount and percentage of a charge for which the prospective client will be responsible. (h) The consenter may revoke consent at any time and for any reason. (i) The consenter has the right to refuse treatment or medication unless a physician treating the patient orders medication to prevent imminent serious physical harm to the client or to another individual. 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 September 17, 1997. TRD-9712357 Mark S. Smock Deputy for Finance and Administration Texas Commission on Alcohol and Drug Abuse Effective date: October 7, 1997 Proposal publication date: July 1, 1997 For further information, please call: (512) 349-6609 Stabilization Process (Level I) 40 TAC sec.148.291 The Texas Commission on Alcohol and Drug Abuse adopts an amendment to sec.148.291, concerning detoxification, without changes to the proposed text as published in the July 8, 1997, issue of the Texas Register (22 TexReg 6417). The amendments are adopted to clarify existing requirements. These rules describe requirements for the detoxification history. No comments were received regarding adoption of the amendment. 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 September 17, 1997. TRD-9712358 Mark S. Smock Deputy for Finance and Administration Texas Commission on Alcohol and Drug Abuse Effective date: October 7, 1997 Proposal publication date: July 1, 1997 For further information, please call: (512) 349-6609 Primary and Transitional Treatment Process (II, III, and IV) 40 TAC sec.sec.148.301, 148.303, 148.304 The Texas Commission on Alcohol and Drug Abuse adopts amendments to sec.sec.148.301, 148.303, and 148.304, concerning the treatment process. Sections 148.301 and 148.303 are adopted with changes to the proposed text as published in the July 1, 1997 issue of the Texas Register (22 TexReg 6182). Section 148.304 is adopted without changes and will not be republished. The amendments are adopted to clarify existing requirements and require a transfer note when a client moves from one level of service to another. Section 148.301 has been revised to clarify that a medical history and physical completed no more than 96 hours before admission does not need to be updated. The list of specific professionals qualified to review a history and physical has been replaced with the term "licensed health professional". Reference to evaluation by a physician assistant or advanced nurse practitioner has been added to be consistent with similar requirements in other sections of the rules. Section 148.303 has been revised to require that a separate progress note be recorded for each individual counseling session. These rules describe requirements regarding client history and assessment, progress notes, and treatment plan reviews. 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.148.301.Client History and Assessment. (a)-(d) (No change.) (e) For residential clients, a medical history and physical examination shall be completed and filed in the client record within 96 hours of admission. (1) The facility may use a medical history and physical examination completed up to 30 days before admission or received from the referring facility. If the examination was completed more than 96 hours before admission, a licensed health professional must review the information with the client and document an update within 96 hours of admission. (2) When the update reflects a significant change in the client's status, the client shall receive further evaluation from a physician, physician assistant, or advanced practice nurse. sec.148.303.Progress Notes. (a) (No change.) (b) Program staff shall document services provided to the client. This may be done by filing a copy of the program schedule in the client record and documenting the client's level of participation in the progress notes. The record shall include individual documentation of all group services if the schedule of services is not followed. (c) All documentation shall be filed in the client record and shall include the date, nature, and duration of the contact, as well as the signature and credentials (if applicable) of the person providing the services. (d) Counselors shall write a progress note at least weekly when services are provided. Weekly notes shall describe the client's progress toward stated treatment plan goals and other significant information. (e) A separate progress note must be recorded for each individual counseling session. 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 September 17, 1997. TRD-9712359 Mark S. Smock Deputy for Finance and Administration Texas Commission on Alcohol and Drug Abuse Effective date: October 7, 1997 Proposal publication date: July 1, 1997 For further information, please call: (512) 349-6609 PART XX. Texas Workforce Commission CHAPTER 803.Skills Development Fund The Texas Workforce Commission (Commission) adopts the repeal of sec. 803.1 and new sec.sec.803.1-803.3, sec.sec.803.11-803.15 and sec.sec.803.31-803.35, concerning Requirements for Skills Development Fund, with changes to the proposed text as published in the August 1, 1997, issue of the Texas Register (22 Tex Reg 7147). New sec.sec.803.1, 803.3, 803.11, 803.12, 803.13, 803.15 and sec.sec.803.31- 803.35 are adopted without changes and new sec.803.2 concerning Definitions and sec.803.14 concerning Procedure for Requesting Funding are adopted with changes. In sec.803.2, the proposed second sentence is deleted to remove superfluous language and sec.803.14(a) is changed to include language clarifying the local workforce development boards' role in the funding process. The purpose of these rules is to implement Texas Labor Code, Chapter 303, relating to the operation of the Skills Development Fund. New Subchapter A concerning the General Provisions adds that the Texas Engineering Extension Service (TEEX) may respond to industry and workforce training needs and provide customized assessment and training as authorized by Senate Bill 1712, 75th Legislature, Regular Session. New sec. 803.2, concerning Definitions, adds a definition for the Texas Engineering Extension Service (TEEX), and adds references to TEEX in the definitions of: Customized Training Program, Grant Recipient, Prospective Private Partner, and Training Provider. The definition for Director is also changed to clarify that it may refer to the Executive Director's designee. New sec. 803.3, concerning Uses of the Fund, adds that TEEX may use the Skills Development Fund as start-up or emergency funds to develop customized training programs and to sponsor small and medium-sized business networks and consortiums; that TEEX shall focus on statewide training programs that are not available from a local community or technical college or a consortium of junior college districts; that TEEX may participate with a consortium of junior college districts or with a technical college; that technical college training activities shall focus on statewide programs that are not available from a local community college, except in the technical college's local service area; that travel and drug testing are not eligible costs under the program since these are not considered costs related to direct training or to the administration of the grant; and that lease of equipment is not an allowable cost if the lease transaction meets any of the four criteria in the rule that would characterize the lease as a proprietary or production equipment purchase in which substantially all of the risks and benefits of ownership are assumed by the lessee. New Subchapter B is added, concerning Program Administration. New sec. 803.11 concerning Grant Administration adds that the Executive Director or a designated employee or employees of the Commission may allocate the use of funds during the biennium on a quarterly basis. New sec. 803.12 concerning Limitations on Awards adds the Commission's authority to limit the amount of awarded funds, including limits on single employer training programs, caps on allowable purchases of proprietary or production equipment and on administrative costs. New sec. 803.13 concerning Program Objectives adds the following program objectives: to ensure that program funds are spent in all areas of this state, to respond to the training needs of business consortiums consisting of micro- businesses to medium-sized businesses; to develop projects that will create jobs in Local Workforce Development Areas where the unemployment rate is above the state's annual average; to facilitate projects eligible for the Self-Sufficiency Fund; to sponsor pilot programs in allied health professions to certain recipients of financial assistance under Human Resources Code, Chapter 31; to develop projects that at completion of training will result in wages greater than the prevailing wage and employment benefits; to develop projects that will result in employment benefits for participants, to facilitate the statewide growth of industry and emerging occupations; to sponsor creation and attraction of high value, high skill jobs for the state, to ensure retention of jobs; to develop projects that include contributions from other resources; and to ensure that available resources are utilized to respond to workforce training needs. New sec. 803.14 concerning Procedure for Requesting Funding, adds language to allow TEEX to present a joint proposal with a prospective private partner requesting skills development funds; to require prior consultation with a local workforce development board, to allow TEEX to be a non-local partner in a joint training proposal as long as the training proposal does not duplicate a training program available in the local workforce development area; to add a reference to TEEX in the information that is included in the proposal; and to require a written proposal that indicates the number of proposed jobs created and preserved, the skills acquired through training, the occupations and wages at the end of the training, the amount of the private partner's contribution, a comparison of program costs, and a list of the employment benefits. New sec. 803.15 concerning Procedure for Proposal Evaluation adds the list of the following additional factors in the Commission's evaluation of a proposal: the program objectives, the information contained in the proposal, the prevailing wage for occupations in the local labor market area, the financial stability of the prospective private partner, and the regional economic impact. The section also authorizes the Executive Director to enter into a contract with the grant recipient if a contract is approved for funding. New Subchapter C is added relating to Program Administration After Award of Contract. New sec. 803.31 concerning Grant Recipient Responsibilities, adds subsection (b) requiring that contractors maintain fiscal data needed for independent verification of expenditures; and subsection (c) requiring that contract amendments be requested and approved in writing before a change to the contract is implemented. New sec. 803.32 concerning Contract Completion Reports, clarifies that the 90 day requirement to submit a final report is tied to the end of the contract period instead of the completion of the customized training program. The new section also adds that the occupations trainees were placed in and wages for those occupations need to be included in the final report from the Contractor and clarifies that the final report from the Contractor should summarize the training program results, including the results of the training objectives and outcomes specified in the contract to ensure that the contractual obligations were met and may include an evaluation of the effectiveness of the training program from the private partner since the business will be affected by the outcome of the customized training program. New sec. 803.32 also adds that payroll records and/or reports certified by an independent auditor must be provided that include the name, social security number, occupation, and trainee's wage or a statement that each trainee's wage is equal to the prevailing wage for that occupation. New sec. 803.33 concerning Contract Payment adds language authorizing the Executive Director to allow an attrition rate of 15% based on the total number of trainees outlined in the contract. New sec. 803.34 concerning Notice to Texas Higher Education Coordinating Board adds a reference to TEEX. New sec. 803.35 concerning Waivers provides the Executive Director with the authority to suspend or waive a section, not statutorily imposed, if there is a showing of good cause and a finding that the public interest would be served by such a suspension or waiver. The following comments were received from Mr. Robert Prock, Assistant Agency Director, Texas Engineering Extension Service, Texas A&M University System, from Dr. Sandy Shugart, of the North Harris/Montgomery Community College District, and from Texas Workforce Commission staff, concerning the proposed rules. Following the comments are the Commission's responses. Comment: One commenter did not indicate a position for or against the rules, but expressed concern that new sec. 803.3(d)(4), which prohibits use of the Skills Development Fund to pay for trainee or instructor travel costs, assigns an unfair cost to rural or remote businesses. Response: The Commission believes the intent of the Skills Development Fund is to provide initial funding to cover part of the expenses directly related to approved training. The start-up funding from the Skills Development Fund is intended to be a portion of multiple funding sources for a training project. In establishing its rules on the uses of the Skills Development Fund, the Commission is seeking to limit administrative expenses to those directly related training costs. The Commission believes that travel costs are not a directly related training cost, and no change is made to the rule. Comment: The same commenter expressed a concern that new sec. 803.3(d)(4) which also prohibits use of the Skills Development Fund to pay for trainee drug testing will add costs to the program, in that if potential employees fail a drug test, the training funds are wasted. Response: The Commission believes that the provision of trainee drug tests should be negotiated between the training provider and the private partner in developing their partnership to propose a customized training program. Because the Skills Development Fund is only intended to provide initial funding for a customized training program, trainee drug test funding should be from other sources available to the training provider or private partner. The Commission believes that trainee drug test costs are not a directly related training cost, and no change is made to the rule Comment: A second commenter did not indicate a position for or against the rules, but expressed a concern that a local community college should have the right of first refusal for training that is within the local community college's capacity to deliver, before another agency, such as TEEX, is funded for training in that area. Response: The Commission believes that the commenter's concern is sufficiently addressed by statutory and rule safeguards which will be implemented by agency staff administering the Skills Development Fund. Texas Labor Code, sec. 303.003(f), limits TEEX's training activities to statewide projects, or to programs that are not available from a local junior college district, a local technical college, or a consortium of junior college districts. The Commission's new sec. 803.3(b) and (c), concerning Uses of the Fund, reinforce the statutory limitation by requiring TEEX training activities to focus on statewide projects or programs that are not available from a local junior college district. The Commission's new sec. 803.14(b), concerning Procedure for Requesting Funding, provides that a proposal from TEEX or a technical college must not duplicate a training program in the local workforce development area. The Commission staff will ensure that such limitations and safeguards are strictly implemented, and no change is made to the rule. Comment: The Commission staff indicated a position in support of the rules but stated that new sec. 803.2, concerning Definitions, contained superfluous language in defining Public Community Colleges. Response: The Commission believes that the initial sentence in the definition of Public Community Colleges accurately describes such entities, and that deletion of the second proposed sentence would provide a clearer definition. The Commission will delete the last sentence in the proposed definition of Public Community Colleges. Comment: The Commission staff also expressed concern that new sec. 803.14(a), concerning Procedure for Requesting Funding, did not reflect the intent that training must be coordinated within a local workforce development area. Response: The Commission believes that in order to clarify the intent of the rule, sec. 803.14(a) should be amended to expressly provide that prior to submission of a joint proposal requesting funding the prospective private partner and the public community or technical college must consult with a local workforce development board. 40 TAC sec.803.1 The repeal is adopted under Texas Labor Code, sec. 301.061, which provides the Texas Workforce Commission with the authority to adopt, amend or rescind such rules as it deems necessary for the effective administration of Texas Labor Code, Title 4. 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 September 16, 1997. TRD-9712330 J. Randel Hill General Counsel Texas Workforce Commission Effective date: October 6, 1997 Proposal publication date: August 1, 1997 For further information, please call: (512) 463-2291 SUBCHAPTER A.General Provisions Regarding the Skills Development Fund 40 TAC sec.sec.803.1-803.3 The new rules are adopted under Texas Labor Code, sec.301.061, which provides the Texas Workforce Commission with the authority to adopt, amend or rescind such rules as it deems necessary for the effective administration of Texas Labor Code, Title 4. sec.803.2 Definitions. The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise. Assessment -- The evaluation of an employer's workforce needs and requirements. Customized Training Program-- A program designed by a private business or trade union in partnership with a public community or technical college or TEEX for the purpose of providing specialized workforce training to employees or prospective employees of the private business or members of the trade union with the intent of either adding to the workforce or preventing a reduction in the workforce. Director-- The Executive Director of the Texas Workforce Commission or the Executive Director's designee. Grant Recipient -- Any public community or technical college or TEEX awarded a grant from the skills development fund. Non-Local Public Community and Technical College -- A public or community technical college providing training outside of its local taxing district. Prospective Private Partner -- Any person, sole proprietorship, partnership, corporation, association, consortium, or private organization that submits a joint proposal for a customized training program in partnership with a public community or technical college or TEEX. Public Community Colleges -- Two-year institutions primarily serving their local taxing districts and service areas in Texas and offering vocational, technical and academic courses for certification or associate degrees. Public Technical Colleges-- Coeducational institutions of higher education offering courses of study in vocational and technical education, for certification or associate degrees. Texas Engineering Extension Service (TEEX) -- A higher education agency and service established by the Board of Regents of the Texas A&M University System. Trade Union -- Any organization, agency, or employee committee, in which employees participate and which exists for the purpose of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. Training Provider -- Any public community or technical college or TEEX that provides training; or any person, sole proprietorship, partnership, corporation, association, consortium, governmental subdivision or public or private organization with whom a public community or technical college or TEEX has subcontracted to provide training. 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 September 16, 1997. TRD-9712331 J. Randel (Jerry) Hill General Counsel Texas Workforce Commission Effective date: October 6, 1997 Proposal publication date: August 1, 1997 For further information, please call: (512) 463-2291 SUBCHAPTER B.Program Administration 40 TAC sec.sec.803.31-803.35 The new rules are adopted under Texas Labor Code, sec.301.061, which provides the Texas Workforce Commission with the authority to adopt, amend or rescind such rules as it deems necessary for the effective administration of Texas Labor Code, Title 4. sec.803.14 Procedure for Requesting Funding. (a) After consultation with a local workforce development board, a prospective private partner together with a public community or technical college or TEEX shall present to the director a joint proposal requesting funding for a customized training program or other appropriate use of the fund. (b) TEEX, or the public community or technical college that is a partner to a joint training proposal for a grant from the Skills Development Fund may be non- local, but the training proposal must not duplicate a training program available in the local workforce development area in which the prospective private partner is located. (c) Proposals shall be written and contain the following information: (1) the number of proposed jobs created or retained; (2) a brief outline of the proposed training program, including the skills acquired through training; (3) a brief description of the measurable training objectives; (4) the occupation and wages for participants who complete the customized training program; (5) a budget summary, disclosing anticipated program costs and resource contributions, including the dollar amount the prospective private partner is willing to commit to the project; (6) an outline of the agreement between the prospective private partner and the public community or technical college or TEEX; (7) a statement explaining the basis for the determination that there is an actual or projected labor shortage in the occupation in which the proposed training program will be provided that is not being met by an existing institution or program in the local workforce development area; (8) a comparison of costs per trainee for the customized training program to the public community or technical college's or TEEX' costs for similar instruction; (9) a statement describing the prospective private partner's equal opportunity employment policy; (10) a list of the proposed employment benefits; and (11) any additional information deemed necessary by the Commission to complete evaluation of a proposal. 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 September 16, 1997. TRD-9712329 J. Randel (Jerry) Hill General Counsel Texas Workforce Commission Effective date: October 6, 1997 Proposal publication date: August 1, 1997 For further information, please call: (512) 463-2291 SUBCHAPTER C.Program Administration After Award of Contract 40 TAC sec.sec.803.31-803.35 The new rules are adopted under Texas Labor Code, sec.301.061, which provides the Texas Workforce Commission with the authority to adopt, amend or rescind such rules as it deems necessary for the effective administration of Texas Labor Code, Title 4. 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 September 16, 1997. TRD-9712328 J. Randel (Jerry) Hill General Counsel Texas Workforce Commission Effective date: October 6, 1997 Proposal publication date: August 1, 1997 For further information, please call: (512) 463-2291