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 19. EDUCATION PART II. Texas Education Agency CHAPTER 74. Curriculum Requirements The Texas Education Agency (TEA) adopts amendments to sec.74.3 and sec.sec.74.11-74.13, concerning curriculum requirements, with changes to the proposed text as published in the August 1, 1997, issue of the Texas Register (22 TexReg 7118). The sections establish definitions, requirements, and procedures related to required curriculum and graduation requirements. The adopted amendments would provide school districts the option of offering the technology applications courses in the recently adopted 19 TAC Chapter 126, Texas Essential Knowledge and Skills (TEKS) for Technology Applications, beginning in the 1997-1998 school year for state high school graduation credit. The adopted amendments will align the graduation requirements with the Texas essential knowledge and skills. All students entering Grade 9 during the 1997- 1998 school year must have one technology applications graduation credit. In addition to the technology applications courses, courses from 19 TAC Chapter 120, TEKS for Business Education, and 19 TAC Chapter 123, TEKS for Technology Education/Industrial Technology Education, are also to receive state high school technology applications graduation credit. The adopted amendments would revise the technology applications graduation requirement under the minimum, recommended, and distinguished achievement graduation plans. Under Senate Bill 1, a rule adopted by the State Board of Education (SBOE) normally does not take effect until the beginning of the school year that begins at least 90 days after the date the rule is adopted. However, the Bill provides that a board rule may take effect earlier under certain circumstances. The SBOE, by an affirmative vote of two-thirds of the board members, proposes an earlier effective date for the adopted amendments. The earlier date would allow schools to begin offering these courses in the 1997-1998 school year on a voluntary basis. The following changes have been made since the section was proposed. In sec.74.3(b)(2)(K)(iii)-(v), language has been amended to indicate that graduation credit for Computer Mathematics will be phased out on August 31, 1998, rather than August 31, 1999. In July 1997, the State Board of Education adopted the TEKS for mathematics with an implementation date of September 1, 1998. This change was also made in sec.sec.74.11(d)(10)(C)-(E), 74.12(b)(10)(C)- (E), and 74.13(a)(1)(J)(iii)-(v). The following public comments have been received since the sections were proposed. General Comments. An individual and a representative of the Association of Texas Technology Education commented in support of several technology education courses listed from which students may select for state high school technology applications credit. Agency Response. The agency agrees with these comments. SUBCHAPTER A. Required Curriculum 19 TAC sec.74.3 Due to a technical error, sec.74.13 was inadvertently omitted from the October 3, 1997, issue of the Texas Register (22 TexReg 9891). The rule will become effective October 13, 1997. The amendment is adopted under the Texas Education Code (TEC), sec.28.002, which directs the SBOE to adopt rules related to essential knowledge and skills and required curricula, and sec.28.025, which directs the SBOE to adopt rules that determine curriculum requirements for the minimum, recommended, and advanced high school programs that are consistent with the required curriculum under TEC, sec.28.002. sec.74.3. Description of a Required Secondary Curriculum. (a) (No change.) (b) Secondary Grades 9-12. (1) (No change.) (2) The school district must offer the courses listed in this paragraph and maintain evidence that students have the opportunity to take these courses: (A)-(J) (No change.) (K) technology applications - one unit of credit selected from a variety of computer-related courses including: (i) all courses in Chapter 126 of this title (relating to Texas Essential Knowledge and Skills for Technology Applications); (ii) the following courses in Chapter 120 of this title (relating to Texas Essential Knowledge and Skills for Business Education): Business Computer Information Systems I and II, Business Computer Programming, Telecommunications and Networking, and Business Image Management and Multimedia; (iii) the following courses in Chapter 123 of this title (relating to Texas Essential Knowledge and Skills for Technology Education/Industrial Technology Education): Computer Applications, Technology Systems (modular computer laboratory-based), Communication Graphics (modular computer laboratory- based), and Computer Multimedia and Animation Technology; and (iv) Business Computer Applications I and II, Business Computer Programming I and II, Computer Applications, Computer Science I and II, Microcomputer Applications, Business Information Processing, Industrial Technology Computer Applications, and Computer Mathematics as provided in Chapter 75, Subchapter D, of this title (relating to Essential Elements - Grades 9-12) until August 31, 1998. (L) (No change.) (3) (No change.) This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 22, 1997. TRD-9712613 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: October 13, 1997 Proposal publication date: August 1, 1997 For further information, please call: (512) 463-9701 SUBCHAPTER B. Graduation Requirements 19 TAC sec.sec.74.11-74.13 The amendments are adopted under the Texas Education Code (TEC), sec.28.002, which directs the SBOE to adopt rules related to essential knowledge and skills and required curricula, and sec.28.025, which directs the SBOE to adopt rules that determine curriculum requirements for the minimum, recommended, and advanced high school programs that are consistent with the required curriculum under TEC, sec.28.002. sec.74.11. High School Graduation Requirements. (a)-(c) (No change.) (d) A student must complete at least 22 credits to receive a minimum high school program diploma. Credit may be awarded without prior instruction under Texas Education Code, sec.28.023 (relating to Credit by Examination), or sec.39.023(i) (relating to end-of-course tests). A student must demonstrate proficiency in the following. (1)-(9) (No change.) (10) Technology applications - one credit, which may be satisfied by: (A) all courses in Chapter 126 of this title (relating to Texas Essential Knowledge and Skills for Technology Applications); (B) the following courses in Chapter 120 of this title (relating to Texas Essential Knowledge and Skills for Business Education): Business Computer Information Systems I or II, Business Computer Programming, Telecommunications and Networking, or Business Image Management and Multimedia; (C) the following courses in Chapter 123 of this title (relating to Texas Essential Knowledge and Skills for Technology Education/Industrial Technology Education): Computer Applications, Technology Systems (modular computer laboratory-based), Communication Graphics (modular computer laboratory-based), or Computer Multimedia and Animation Technology; or (D) Business Computer Applications I or II, Business Computer Programming I or II, Computer Applications, Computer Science I or II, Microcomputer Applications, Business Information Processing, Industrial Technology Computer Applications, or Computer Mathematics as provided in Chapter 75, Subchapter D, of this title (relating to Essential Elements - Grades 9-12) until August 31, 1998. (11) (No change.) (e)-(h) (No change.) sec.74.12. Recommended High School Program. (a) (No change.) (b) Academic core components. College Board advanced placement and International Baccalaureate courses may be substituted for requirements in appropriate proficiency areas. Credit may be awarded without prior instruction under Texas Education Code, sec.28.023 (relating to Credit by Examination), or sec.39.023(i) (relating to end-of-course tests). The student must demonstrate proficiency in the following. (1)-(9) (No change.) (10) Technology applications - one credit, which may be satisfied by: (A) all courses in Chapter 126 of this title (relating to Texas Essential Knowledge and Skills for Technology Applications); (B) the following courses in Chapter 120 of this title (relating to Texas Essential Knowledge and Skills for Business Education): Business Computer Information Systems I or II, Business Computer Programming, Telecommunications and Networking, or Business Image Management and Multimedia; (C) the following courses in Chapter 123 of this title (relating to Texas Essential Knowledge and Skills for Technology Education/Industrial Technology Education): Computer Applications, Technology Systems (modular computer laboratory-based), Communication Graphics (modular computer laboratory-based), or Computer Multimedia and Animation Technology; or (D) Computer Science I or II, Business Computer Applications I or II, Business Computer Programming I or II, Computer Applications, Microcomputer Applications, Business Information Processing, Industrial Technology Computer Applications, or Computer Mathematics as provided in Chapter 75, Subchapter D, of this title (relating to Essential Elements - Grades 9-12) until August 31, 1998. (11) (No change.) (c)-(d) (No change.) sec.74.13. Distinguished Achievement Program -- Advanced High School Program. (a) Beginning in the 1999-2000 school year, a student who wishes to complete an advanced high school program (called the distinguished achievement program) and have the accomplishment recognized and distinguished on the academic achievement record (transcript) must complete the following requirements. (1) Academic core components. College Board advanced placement and International Baccalaureate courses may be substituted for requirements in appropriate proficiency areas. The student must demonstrate proficiency in the following. (A)-(I) (No change.) (J) Technology applications - one credit, which may be satisfied by: (i) all courses in Chapter 126 of this title (relating to Texas Essential Knowledge and Skills for Technology Applications); (ii) the following courses in Chapter 120 of this title (relating to Texas Essential Knowledge and Skills for Business Education): Business Computer Information Systems I or II, Business Computer Programming, Telecommunications and Networking, or Business Image Management and Multimedia; (iii) the following courses in Chapter 123 of this title (relating to Texas Essential Knowledge and Skills for Technology Education/Industrial Technology Education): Computer Applications, Technology Systems (modular computer laboratory-based), Communication Graphics (modular computer laboratory-based), or Computer Multimedia and Animation Technology; or (iv) Computer Science I or II, Business Computer Applications I or II, Business Computer Programming I or II, Computer Applications, Microcomputer Applications, Business Information Processing, Industrial Technology Computer Applications, or Computer Mathematics as provided in Chapter 75, Subchapter D, of this title (relating to Essential Elements - Grades 9-12) until August 31, 1998. (K) (No change.) (2)-(4) (No change.) (b)-(g) (No change.) This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 22, 1997. TRD-9712614 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: October 13, 1997 Proposal publication date: August 1, 1997 For further information, please call: (512) 463-9701 TITLE 22. EXAMINING BOARDS PART V. State Board of Dental Examiners CHAPTER 101.Dental Licensure 22 TAC sec.101.8 The State Board of Dental Examiners adopts new sec.101.8, concerning persons with criminal backgrounds without changes to proposed text as published in the August 12, 1997, issue of the Texas Register (22 TexReg 7446). The new rule sec.101.8 establishes the guidelines the SBDE will follow when considering whether a criminal history will affect either an applicant's initial request for licensure or an individual's status as a licensed practitioner. The new rule sec.101.8 incorporates the provisions of Article 6252-13(c) which provides that persons with criminal backgrounds may obtain or retain a professional license if the criminal activity does not directly relate to the duties and responsibilities of the profession. The rule provides a list of offenses the Board has determined relate to an individual's fitness for licensure by the Board. Conviction of any felony involving fraud, dishonesty, or deceit will render an individual ineligible to obtain or retain licensed status. The relationship between a dentist or hygienist and a patient is one based on trust and the professional must be trustworthy and honest; conviction of such crimes is proof that an individual is dishonest and/or lacking in trustworthiness. Also, convictions of any crimes involving failure to adhere to statutes regulating dentistry or dental hygiene is proof that an individual knowingly, or with disregard for the interest of persons seeking dental care, has violated applicable law or rules. The remainder of the violations listed are crimes of such a serious nature that an individual convicted of one or more of them has demonstrated that he or she is either unmindful of, or exhibits disregard for the basic tenents of behavior reflected in the "social contract" that can be said to exist in a civilized society. Licensed professionals hold positions of trust in a society and reasonably should be expected to conduct themselves in keeping with its basic tenents. Conviction of any of the other listed crimes does not mean automatic ineligibility to obtain or retain a license; the Board, pursuant to rule 101.8 section (e), may consider the factors described therein and allow licensure. No comments were received regarding adoption of the new rule. The new rule is adopted under Texas Government Code sec.2001.021 et. seq.; Texas Civil Statutes, Article 4543 sec.2 and 4551d which provide the State Board of Dental Examiners with the authority to adopt and promulgate rules consistent with the Dental Practice Act; Article 4545 which provides that the State Board of Dental Examiners may adopt rules relating to licensure requirements for dentists; and Texas Civil Statutes, Article 6252-13(c), which addresses licensure of professionals with criminal histories. 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 29, 1997. TRD-9712866 Douglas A. Beran, Ph.D Executive Director State Board of Dental Examiners Effective date: October 20, 1997 Proposal publication date: August 12, 1997 For further information, please call: (512) 463-6400 CHAPTER 102.Fees 22 TAC sec.102.1 The State Board of Dental Examiners adopts amendment to sec.102.1, concerning licensing and examination fees without changes to proposed text as published in the August 12, 1997, issue of the Texas Register (22 TexReg 7447). The amended rule sec.102.1 ensures (1) that the State Board of Dental Examiners will have sufficient revenue to cover additional costs of staff increases authorized by the Legislature and resources to enforce the Dental Practice Act and (2) that the peer assistance program will have a guaranteed revenue to assure assistance for professionals impaired by chemical dependency or mental illness. No comments were received regarding adoption of the amendment. The amended rule is adopted under Texas Government Code sec.2001.021 et. seq.; Texas Civil Statutes, Article 4543 sec.2 and 4551d which provide the State Board of Dental Examiners with the authority to adopt and promulgate rules consistent with the Dental Practice Act; and Article 4551(b) which provides that the State Board of Dental Examiners shall establish reasonable and necessary fees to cover the cost of administering the Dental Practice Act; Health and Safety Code sec.467.0041, which provides that the State Board of Dental Examiners may impose a surcharge of not more than $10.00 to a license renewal fee for dentists; and HB 1, General Appropriations Act, 75th Legislature, Regular Session, Article VIII. 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 29, 1997. TRD-9712867 Douglas A. Beran, Ph.D Executive Director State Board of Dental Examiners Effective date: October 20, 1997 Proposal publication date: August 12, 1997 For further information, please call: (512) 463-6400 CHAPTER 109.Conduct 22 TAC sec.109.109 The State Board of Dental Examiners adopts new sec.109.109, concerning advertising non ADA specialties with changes to the proposed text as published in the August 12, 1997, issue of the Texas Register (22 TexReg 7448). The new rule establishes a method to allow dentists who have achieved certain professional status to exercise their first amendment rights of free speech to inform the public of their status in a manner that is not false and misleading while ensuring that the public will be fully informed regarding the nature of the professional training and expertise of the dentists. Changes from published for comment version of the rule are made to correct typographical errors to add the words " 'fellow' if the following disclaimer appears in a reasonably clear and visible manner." No comments were received regarding adoption of the new rule. The new rule is adopted under Texas Government Code sec.2001.021 et. seq.; Texas Civil Statutes, Article 4543 sec.2 and 4551d which provides the State Board of Dental Examiners with the authority to adopt and promulgate rules consistent with the Dental Practice Act. sec.109.109.Advertising non ADA Specialties A dentist may announce in any means of communication with patients or the general public; attainment of a fellowship or certification as a diplomate only if the dentist has successfully completed the qualifying examination of the appropriate certifying board of one or more of the specialties recognized by the "American Dental Association", except that a licensed dentist who has been granted diplomate or fellow status by a bona fide national organization which is not recognized as a certifying board by the American Dental Association, but grants diplomate or fellow status based upon the dentist's postgraduate education, training, experience and an oral and written examination based upon psychometric principles, may use the terms "diplomate", "fellow", or "associate fellow" if the following disclaimer appears in a reasonably clear and visible manner compared to the announcement of the status "the (insert the name of organization granting diplomate status) is not recognized as a specialty board by the American Dental Association." This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 29, 1997. TRD-9712868 Douglas A. Beran, Ph.D Executive Director State Board of Dental Examiners Effective date: October 20, 1997 Proposal publication date: August 12, 1997 For further information, please call: (512) 463-6400 CHAPTER 114.Extension of Duties of Auxiliary Personnel Dental Assistants 22 TAC sec.114.2 The State Board of Dental Examiners adopts new rule sec.114.2, concerning definitions without changes to proposed text as published in the August 12, 1997, issue of the Texas Register (22 TexReg 7458). The new rule communicates unambiguously that certain procedures performed with dental lasers are irreversible and may not be performed by dental assistants. Dentists may not delegate tasks to dental assistants if the results of the task cannot be reversed and this includes cutting procedures. The Board is of the opinion that lasers, whether used as surgical instruments or as activators for whitening chemicals, have the potential to produce irreversible results and until such time as lasers are shown conclusively to have no such potential, dental assistants may not perform such procedures. No comments were received regarding adoption of the new rule. The new rule is adopted under Texas Government Code sec.2001.021 et. seq.; Texas Civil Statutes, Article 4543 sec.2 and 4551d which provide the State Board of Dental Examiners with the authority to adopt and promulgate rules consistent with the Dental Practice Act and Article 4551e and 4551e-1 which provide that the State Board of Dental Examiners may adopt rules relating to the practice of dental hygiene and employment of dental assistants. 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 29, 1997. TRD-9712869 Douglas A. Beran, Ph.D Executive Director State Board of Dental Examiners Effective date: October 20, 1997 Proposal publication date: August 12, 1997 For further information, please call: (512) 463-6400 CHAPTER 115.Extension of Duties of Auxiliary Personnel Dental Hygiene 22 TAC sec.115.1 The State Board of Dental Examiners adopts amendments to sec.115.1, concerning definitions without changes to the proposed text as published in the August 11, 1997, issue of the Texas Register (22 TexReg 7458). The amendments to sec.115.1 communicate unambiguously that certain procedures performed with dental lasers are irreversible and may not be performed by dental hygienists. Dentists may not delegate tasks to dental hygienists if the results of the task cannot be reversed, and this includes cutting procedures. The Board is of the opinion that lasers, whether used as surgical instruments or as activators for whitening chemicals, have the potential to produce irreversible results and until such time as they are shown conclusively to have no such potential, dental hygienists may not perform such procedures. The Dental Hygiene Advisory Committee during its September 19 meeting commented in favor of adoption of the rule. The amended rule is adopted under Texas Government Code sec.2001.021 et. seq.; Texas Civil Statutes, Article 4543 sec. and 4551d which provide the State Board of Dental Examiners with the authority to adopt and promulgate rules consistent with the Dental Practice Act; and Article 4551e and 4551e-1 which provide that the State Board of Dental Examiners may adopt rules relating to the practice of dental hygiene and employment of dental assistants. 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 29, 1997. TRD-9712870 Douglas A. Beran, Ph.D Executive Director State Board of Dental Examiners Effective date: October 20, 1997 Proposal publication date: August 12, 1997 For further information, please call: (512) 463-6400 22 TAC sec.115.4 The State Board of Dental Examiners adopts new rule sec.115.4, concerning placement of site specific subgingival medicaments without changes to proposed text as published in the August 12, 1997, issue of the Texas Register (22TexReg7459). The new rule sec.115.4 will provide that a dental hygienist who has been trained appropriately as determined by the employing dentist may place certain subgingival medicaments under the direct supervision of a licensed dentist. This rule was proposed to the Board by the Dental Hygiene Advisory Committee and the Board has approved it as proposed. The Dental Hygiene Advisory Committee at its September 19 meeting commented in favor of adoption of the rule. The new rule is adopted under Texas Government Code sec.2001.021 et. seq.; Texas Civil Statutes, Article 4543 sec.2 and 4551d which provide the State Board of Dental Examiners with the authority to adopt and promulgate rules consistent with the Dental Practice Act; and Article 4551e which provide that the State Board of Dental Examiners may adopt rules relating to the practice of dental hygiene. 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 29, 1997. TRD-9712871 Douglas A. Beran, Ph.D Executive Director State Board of Dental Examiners Effective date: October 20, 1997 Proposal publication date: August 12, 1997 For further information, please call: (512) 463-6400 PART XXIII. Texas Real Estate Commission CHAPTER 537.Professional Agreements and Standard Contracts Standard Contract Forms 22 TAC sec.sec.537.11, 537.20, 537.28-537.32, 537.37, 537.38 The Texas Real Estate Commission (TREC) adopts amendments to sec.sec.537.11, 537.20, 537.28-537.32, 537.37 and 535.38, concerning standard contract forms, without changes to the proposed text as published in the March 28, 1997, issue of the Texas Register (22 TexReg 3077). The amendment to sec.537.11 adds eight revised forms to the list of standard contract forms developed by the Texas Real Estate Broker-Lawyer Committee and promulgated by the commission. Two previously promulgated addendum forms have been deleted from the list, because the sections adopting those forms by reference have been repealed. The eight revised forms are TREC Number 9-3, Unimproved Residential Property Contract; TREC Number 20-3, One-to-Four Family Residential Contract (Resale) All Cash, Assumption, Third-Party Conventional or Seller Financing; TREC Number 21- 3, One-to- Four Family Residential Contract (Resale) FHA Insured or VA Guaranteed Financing; TREC Number 23-2, New Home Contract (Incomplete Construction); TREC Number 24-2, New Home Contract (Completed Construction); TREC Number 25-2, Farm and Ranch Contract; TREC Number 30-1, Residential Condominium Contract (Resale) All Cash, Assumption, Third-Party Conventional or Seller Financing; and TREC Number 35-1, Residential Condominium Contract (Resale) FHA Insured or VA Guaranteed Financing. The two forms being deleted from the list of promulgated forms are TREC Number 2-4, Property Condition Addendum, and TREC Number 27-0, Addendum for Inspection with Right to Terminate. The amendment to sec.537.20 adopts by reference form TREC Number 9-3, Unimproved Property Contract, replacing form TREC Number 9-2. The amendment to sec.537.28 adopts by reference form TREC Number 20-3, replacing form TREC Number 20-2. The amendment to sec.537.29 adopts by reference form TREC Number 21-3, replacing form TREC Number 21-2. The amendment to sec.537.30 adopts by reference form TREC Number 23-2, replacing form TREC Number 23-1. The amendment to sec.537.31 adopts by reference form TREC Number 24-2, replacing form TREC Number 24-1. The amendment to sec.537.32 adopts by reference form TREC Number 25-2, replacing form TREC Number 25-1. The amendment to sec.537.37 adopts by reference form TREC Number 30-1, replacing form TREC Number 30-0. The amendment to sec.537.38 adopts by reference form TREC Number 31-1, replacing form TREC Number 31-0. Comments generally in support of the adoption of the forms but suggesting changes to the text were received from the Abilene Board of Realtors, Amarillo Association of Realtors, Collin County Association of Realtors, Greater Tyler Association of Realtors, Lubbock Association of Realtors, Texas Association of Builders, Texas Association of Realtors, Texas Land Title Association, Texas Real Estate Inspector Committee, Texas Real Estate Teachers Association, and the Waco Association of Realtors. More than 275 comments were received on the proposed contract forms from real estate licensees, attorneys, inspectors and members of the general public. Most comments concerned the provisions of the contract forms addressing property included in the sale, financing, payment for title insurance and survey, inspections and repairs to the property, payment of the broker's fee, mediation, recovery of attorney fees and commission agreements between brokers. The Texas Real Estate Broker-Lawyer Committee met four times between May 1, 1997, and September 1, 1997, to evaluate comments and to submit revised versions of the contract forms to the commission for consideration. The commission considered comments and discussed the forms at public meetings on April 28, 1997, June 16, 1997, and July 24, 1997, and requested the Texas Real Estate Broker- Lawyer Committee to consider revisions to the forms suggested by public comments. As a result of comments received, changes were made in the proposed text of most of the forms. The stove was added to the list of property included in the sale, the loan sought by the buyer was restated as a specific loan to value ratio, payment for the survey was made an expense which could be paid by either party, a notice was provided about the availablity of residential service contracts ("home warranties"), the buyer was given the right to inspect the property, a choice was provided for the parties to apply an option fee to the sales price, language limiting the representations and warranties of the seller was removed, neither party was made responsible for lender required repairs in absence of a written agreement to the contrary, a provision was added permitting the buyer to terminate the contract if lender required repairs exceeded five percent of the sales price, proration language was made consistent in the forms, agreements for mediation would be created by an addendum, nonparties such as brokers and the escrow agent would be entitled to recover attorney fees in connection with any legal proceedings brought under or with respect to the transaction and provisions were added relating to an agreement between brokers for payment of a fee. In the contract form for farm and ranch sales, language was added to facilitate use of an addendum if the parties desired to use an abstract of title in lieu of a title insurance policy. The commission determined that it was not appropriate to make a number of changes sought by commenters. The forms were not changed to require the seller to pay for the owner's policy of title insurance because either party may pay that expense. A provision obligating the seller to make repairs up to a stated amount was not provided, because the parties could insert such a provision directly in the space provided for special provisions. The buyer's option, for a separate consideration, to terminate the contract was not removed because to do so would require continued use of a TREC addendum containing the same language. Provisions providing for payment by the seller of a specific fee to the listing broker or brief leasing of the property were not added, because separate agreements or leases would provide more comprehensive agreements. Adoption of the amended sections is necessary to update and standardize the forms used by real estate licensees in negotiating real estate sales. The amendments are adopted under Texas Civil Statutes, Article 6573a, sec.16(e), which authorize the Texas Real Estate Commission to adopt rules requiring real estate brokers and salesmen to use contract forms which have been prepared by the Texas Real Estate Broker-Lawyer Committee and promulgated by the Texas Real Estate Commission. 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 26, 1997. TRD-9712809 Mark A. Moseley General Counsel Texas Real Estate Commission Effective date: January 1, 1998 Proposal publication date: March 28, 1997 For further information, please call: (512) 465-3900 22 TAC sec.sec.537.13, 537.34, 537.42 The Texas Real Estate Commission (TREC) adopts the repeals of sec.537.13 and sec.537.34, concerning standard contract forms, without changes to the proposed text as published in the March 28, 1997, issue of the Texas Register (22 TexReg 3079). Based on the comments received on the proposed repeal of sec.537.42, concerning the Agreement for Mediation, form TREC No. 35-0, the commission determined not to repeal sec.537.42. Section 537.11 concerns the Property Condition Addendum, form TREC No. 2-4, a contract addendum providing for the inspection of a property for termites or for needed repairs. Section 537.34 concerns the Addendum for Inspection with Right to Terminate, form TREC No. 27-0, an addendum permitting the buyer, for a fee, to inspect the property with a right to terminate the contract within a stated period. These sections have been repealed because the addenda they adopted by reference have been incorporated into revised contract forms promulgated by the commission and are no longer needed as addenda. No comments were received regarding the proposed repeal of sec.537.13 or sec.537.34. With regard to sec.537.42, several comments were received urging the commission to continue use of the Agreement for Mediation as an addendum rather than as part of the main contract form. Commenters suggested that the current practice of making the parties to the contract aware of the mediation process and providing an addendum for an agreement to mediate disputes was preferable to a contractual provision in which the parties in every transaction were required to choose whether to submit disputes to mediation. Based on the comments received, the commission determined not to repeal sec.537.42. The repeals are adopted under Texas Civil Statutes, Article 6573a, sec.16(e), which authorize the Texas Real Estate Commission to adopt rules requiring real estate brokers and salesmen to use contract forms which have been prepared by the Texas Real Estate Broker-Lawyer Committee and promulgated by the Texas Real Estate Commission. 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 26, 1997. TRD-9712808 Mark A. Moseley General Counsel Texas Real Estate Commission Effective date: January 1, 1998 Proposal publication date: March 28, 1997 For further information, please call: (512) 465-3900 TITLE 25. HEALTH SERVICES PART II. Texas Department of Mental Health and Mental Retardation CHAPTER 401.System Administration SUBCHAPTER B.Interagency Agreements 25 TAC sec.sec.401.46, 401.55, 401.56 The Texas Department of Mental Health and Mental Retardation (department)adopts the repeal of sec.sec.401.46, 401.55, and 401.56 of Chapter 401, Subchapter B, concerning Interagency Agreements, without changes to the text as proposed in the Tuesday, July 29, 1997, issue of the Texas Register (22 TexReg 7007). The adoption of the repeals will result in a concise and relevant body of policy documents by eliminating unnecessary rules for which the statutory authority has been repealed. Section 401.46 adopted by reference a memorandum of understanding (MOU) between the department and Texas Commission on Alcohol and Drug Abuse (TCADA), Texas Department of Health (TDH), Texas Department of Human Services (TDHS), Texas Department on Aging (TDoA), Texas Education Agency (TEA), Texas Rehabilitation Commission (TRC), and Texas State Board of Pharmacy (TSBP). The MOU addressed the coordination of reviews of community center programs for the mentally disabled and was authorized by former Texas Health and Safety Code, sec.534.034, which was repealed by House Bill 1734, 75th Legislature. Section 401.55 adopted by reference an MOU between the department and TDHS concerning services not provided under the state ICF/MR program. The MOU was authorized by former Texas Health and Safety Code, sec.533.064, which was repealed by Acts 1995, 74th Legislature, ch. 821, sec.18, eff. Sept.1, 1995. Section 401.56 adopted by reference an MOU between the department and TDoA, TDHS, and TDHS concerning biennial revision and updating of the Texas Long-term Care Plan for the Elderly. The MOU was authorized by former Texas Human Resources Code, sec.101.031, which was repealed by Acts 1995, 74th Legislature, ch. 693, sec.23, eff. Sept.1, 1995. No written comments were submitted concerning the proposed repeals. The repeals are adopted under the Texas Health and Safety Code, sec.532.015, which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority, and with legislative actions which repealed Texas Health and Safety Code, sec.sec.534.034 and sec.533.064, and Texas Human Resources Code, sec.101.031. 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 25, 1997. TRD-9712760 Ann Utley Chairman Texas Deparmtent of Mental Health and Mental Retardation Effective date: October 15, 1997 Proposal publication date: July 29, 1997 For further information, please call: (512) 206-4516 SUBCHAPTER G.Community Mental Health and Mental Retardation Centers The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts new sec.sec.401.441-401.456 of Chapter 401, Subchapter G, concerning community mental health and mental retardation centers. Sections 401.441-401.448, 401.450, 401.453, 401.455, and 401.456 are adopted with changes to the proposed text as published in the June 24, 1997, issue of the Texas Register (22 TexReg 5988- 5995). Sections 401.451, 401.452, and 401.454 are adopted without changes. Section 401.449 is adopted with changes to the proposed text as published in the July 18, 1997, issue of the Texas Register (22 TexReg 6726-6728). The repeals of existing sec.sec.401.451-401.463, 401.465, and 401.466, concerning the same, are contemporaneously adopted in this issue of the Texas Register. The subchapter describes the requirements by which community mental health and mental retardation centers are established and operated by a local agency with a plan approved by the Texas MHMR Board. The plan is updated on a three-year cycle and subject to approval by the Texas MHMR Board. The plan is modified as necessary within the three-year cycle and subject to approval by the commissioner. With the exception of sec.401.449, the new sections limit the subchapter's content to requirements for establishing and operating a community center without regard to a center's designation as a local authority. Section 401.449 describes the authority by which the department and community centers may contract for services; allows for the designation of a community center as a local authority and the contracting of services with the department; describes the circumstances for which the department may appoint a management team or individual to manage and operate a community center and the process for appealing the appointment; describes the functions a management team/individual may perform; and describes the responsibilities of the commissioner and the management team/individual. The proposal has been modified upon adoption at the request of several commenters. Minor clarifying language has been added throughout the subchapter. New language has been added to the subchapter's application section for clarification. A definition of "local match" was added and the definitions of "community center," "local contribution" and "region" were modified for consistency with the subchapter's language or for clarification. Language referencing the Texas Health and Safety Code, sec.534.0015 was added to sec.401.444(a). Language in sec.401.444(b) regarding the department's encouragement and support of the affiliation of local agencies with existing community centers and merging of smaller community centers was modified. Language regarding a specific criteria in sec.401.445(a)(2)(B) for reviewing a local agency's letter of intent was modified to address unique geographical or sparsely populated areas of the state. The requirement for a board of trustees to seek public input in the development of its initial plan was added to sec.401.445(c)(1). Language was added to sec.401.445(c)(2), sec.401.446(b), and sec.401.447(b) regarding department staff's authority to verify the information contained in the initial, updated, or modified plan. Language was added to sec.401.445(c) and sec.401.446 regarding the appeal process available to the board of trustees if the commissioner intends to recommend disapproval of its initial or updated plan to the Texas MHMR Board. Language was added to sec.401.448(a) regarding information to be included in a center's dissolution plan. Language was modified or added to sec.401.449 clarifying the requirement for local match; clarifying the department's responsibility and purpose for appointing a management team or individual; granting centers the right to appeal the appointment of a management team/ individual; describing the type of appeal available; and describing the situation in which the appointment is not stayed pending outcome of the appeal. Language was deleted in the same section which identified or limited the source of funds used for paying the costs of the management team/individual. Language was added to sec.401.453 clarifying that the methods for determining salaries of community center employees described in the section was applicable to only those centers that do not contract with the department and that the method for determining salaries described in a contract between the department and a center supersedes the requirements in the section. Language was added to sec.401.454(1) (Exhibit A) requiring the involvement of "other interested citizens" in planning and policy development in addition to persons receiving services, family members, and advocacy organizations, including a description of their major issues of concern and how those issues were addressed. References were modified in sec.401.455 and clarifying language was added to sec.401.456. Public comment was received from The Texas Council of Community Mental Health and Mental Retardation Centers, Austin; The Arc of Texas, Austin; Riceland Regional Mental Health Authority, Wharton; Parent Association for Retarded of Texas, Austin; and a parent of a state school resident. One commenter suggested the definition of "local service area" be included in sec.401.449 since the term is not used elsewhere in the subchapter. The department responds that words and terms are defined in sec.401.443. The department notes that the term "local service area" is used in the definition of "local authority." The same commenter suggested referencing the purpose and policy section (sec.534.0015) of the Texas Health and Safety Code in sec.401.444. The department responds by adding language to reflect the commenter's suggestion. The commenter suggested deleting language in sec.401.444(b) which states that the department encourages and supports the affiliation of local agencies with existing community centers and the merging of smaller community centers. The commenter suggested the deletion because the language anticipates concepts addressed in HB 1734 (75th Legislature) that are yet to be considered in accordance with the statute. The department responds by deleting the language as requested. Regarding sec.401.445(c)(1(C)(i), the commenter noted that the term "state- operated community services," in the absence of the use of capital letters or the acronym "SOCS," may be misunderstood. The department responds by adding the acronym "SOCS" for clarification. Regarding sec.401.445(c)(1(C)(ii), the same commenter suggested adding the phrase "including amount of local contribution, e.g., if the center desires to receive funding from the department." The commenter suggested the phrase to address the merging of two or more centers when a SOCS is not involved. The department responds by adding revised language which addresses the commenter's concern. The commenter suggested adding language to sec.401.446(c)(1)-(2) clarifying that the certificate of recognition is an updated certificate. The department responds by adding language to reflect the commenter's suggestion. Regarding sec.401.446(c)(3), the commenter stated that the last sentence should be deleted or revised because if the department is of the opinion that it can not revoke a center's certificate of recognition, then the sentence is in violation of the department's position when it states "the department no longer recognizes the entity as a community center." The statement is, in effect, a revocation. The commenter suggested adding a decertification section and stating in sec.401.446 that failure to timely submit requested updated material to the department is grounds for decertification. The commenter asked what happens if a center repeatedly or materially fails to perform and operate for the purposes and functions described in its current plan. The commenter stated that his organization takes the position that the department has the implicit authority to disapprove what it has the explicit authority to approve, i.e., the department has the authority to revoke a center's certificate of recognition and involuntarily dissolve the center because it has the authority to approve the plan for a center's establishment. The commenter suggested language describing a procedure for decertification which involved notices, responses, plan of correction, informal medication, and an administrative hearing conducted by the Board. The department agrees that the phrase "the department no longer recognizes the entity as a community center" is, in effect, a revocation. However, the department does not agree with the commenter's suggestion to create a separate process for decertifying a center. The department responds that it is able to revoke a center's certification through the updated or modified plan process. Section 401.446(a) requires a center to submit an updated plan on an assigned three-year cycle, or as requested by the Texas MHMR Board, or as necessary. Section sec.401.447(a) requires a center to submit a modification of its current plan as frequently as necessary to reflect material changes in the community center's local agencies, functions, or region. With these requirements and the addition of language in the plan's review process which permits verification of the information contained in the plan, the Board is able to disapprove a center's plan if it does not reflect the center's purposes and operation. This is, in effect, a revocation. Additionally, the department adds an appeal process for centers if disapproval of their initial or updated plan will be recommended to the Texas MHMR Board. The appeal process involves notices, responses, and an administrative hearing "proposal for decision." The same commenter suggested minor clarifying language to sec.401.447(a)(1)(A), (a)(2), (a)(2)(B). The department responds by adding the clarifying language as suggested. The commenter suggested adding the term "purposes" to sec.401.447(a)(3) to comply with statute and sec.401.445(c)(4). The department responds that the purposes of a center, stated in Section II of Exhibit A (Charter To Be a Community Center), may not be expanded, reduced, or amended. The same commenter suggested deleting sec.401.447(d) because it is redundant to sec.401.445(c)(4). The department responds that, although the language is redundant, it declines to delete it because sec.401.445 addresses the establishment of a new center while sec.401.447 addresses modifying the current plan of an existing center. Regarding sec.401.448(a), the commenter suggested including the pluralization of local agency for clarification. The department responds by modifying the language to reflect the commenter's concern. Regarding sec.401.448(a), the same commenter suggested adding a new (5) which states "the future plans for the region's service delivery system (e.g., affiliation with an existing center, establishment of a new center, reliance upon a SOCS). The department responds by adding the suggested language. Regarding sec.401.450(b)(3), the commenter stated that, since sec.534.022 of the Texas Health and Safety Code applies only to purchases of property through a permissive bond issuance, the phrase "where applicable" should be added. The department responds that the statute applies to community centers interested in acquiring or refinancing the acquisition of real and personal property or to construct improvements to property and not specifically for purchases of property through a permissive bond issuance. The statute allows community centers to contract in accordance with Subchapter A, Chapter 271, Local Government Code, or issue, execute, refinance, or refund bonds, notes, or contracts. Regarding sec.401.450(c)(3), the same commenter requested changing the term "conducted" to "administered" for consistency with state statute. The department responds by changing the language as requested. Regarding sec.401.450(f), the commenter suggested changing the term "local funds" to the defined term "local contribution" for consistency. The department responds that the phrase "local funds required to match department funds" is from statute (sec.534.021, Texas Health and Safety Code) and means local match. Local match is that which a local authority is required to contribute to match department funds per a performance contract. Local contribution is that which each local agency contributes to the community center, regardless of whether the center is a local authority. If the community center is also the local authority, then the local match requirement is met using the local contribution. The statute applies to those community centers that are local authorities or that receive department funds. For clarification, a definition for "local match" has been added and language throughout the rule has been modified to include the term as appropriate. Additionally, the definition of "local contribution" has been modified. The same commenter suggested deleting sec.401.451 because centers must comply with the Civil Rights Act and the Americans with Disabilities Act whether or not it is stated in a department rule. The commenter stated that the requirement's applicability to "entities with which they contract" is confusing, because those entities will be required to comply in accordance with law, not by contract. The commenter also stated that any requirement of "entities with which they contract" should be placed in department rules governing contracts. The department responds that it is obligated to state such requirements pursuant to its civil rights methods of administration which were negotiated by the Texas Health and Human Services Commission with the United States Department of Health and Human Services regional Office of Civil Rights. Regarding the development of the initial, updated, or modified plan and a center's decision to dissolve or merge with an existing center, another commenter suggested that the rule require the board of trustees to seek input (through some form of public process) from the broader stakeholder community. The commenter stated that any public input received should be summarized in written form and submitted to the department as an addendum to the initial, updated, or modified plan, or dissolution plan. The commenter also suggested requiring assistance from the center's mental health and mental retardation planning advisory councils in developing the updated and modified plans, and dissolution plan. Additionally, the commenter suggested providing an appeal process for a center if its initial, updated, or modified plan is not approved. The department responds by adding language requiring the board of trustees to seek input through a public process (e.g., public hearings, focus groups, town meetings) from the citizens in the proposed region regarding local needs and priorities. Also, in Section V of Exhibit A (Charter To Be a Community Center) language has been added regarding the involvement of "other interested citizens" in addition to persons receiving services, family members, and advocacy organizations in planning and policy development, including a description of their major issues of concern and how those issues were addressed. Regarding assistance from the center's mental health and mental retardation planning advisory councils in developing the updated and modified plans, and dissolution plan, the department responds that, with the exception of the development of the initial plan, requiring input from mental health and mental retardation planning advisory councils is a local authority planning function. However, the department notes that any initial, updated, or modified plan must state the involvement of persons receiving services, family members, advocacy organizations, and other interested citizens in planning and policy development. Regarding providing an appeal process for a center if its initial, updated, or modified plan is not approved, the department responds by adding an appeal process for a center if the commissioner intends to recommend disapproval of a center's initial or updated plan to the Texas MHMR Board. Two commenters requested that language be added clarifying that state school services are included in the "comprehensive array of mental heath and mental retardation services" (sec.401.445(a)(2)(C)), the "range of environments in which those services may be delivered" (sec.401.450(c)(1)(C)), and "effective system of comprehensive community-based mental health and mental retardation service programs" (Section IV of Exhibit A). The commenters provided documentation of Commissioner Don Gilbert's statement of his perspective on the role of the mental retardation authority as being the "front door" or "conduit" for entry into the TDMHMR system. Regarding Section II of Exhibit A, the commenters expressed appreciation for the acknowledgment that community placement may not always be appropriate and feasible and requested adding a statement regarding the support and respect for a person's right to choose. The department responds that this subchapter's content is limited to requirements for establishing and operating a community center without regard to a center's designation as a local authority. The commenters' issues pertain to an entity's designation as a local authority, not an entity's existence as a community center. The department notes that it is developing draft rules governing local authorities which will include language that addresses the commenters' concerns. Regarding sec.401.449, one commenter stated that the appointment of a management team to correct a contractual issue is an overall approach which oversteps the contractual rights of the department. The commenter requested that an approach be explored that will allow control of departmental funds and obligations without interfering with the center's operations outside of that sphere. The commenter also requested the review of the department's legal authority to appoint a management team/individual who will suspend the responsibility of and management by a board of trustees that was appointed by an independent unit of local government. The commenter expressed concern about the department's legal authority regarding sec.401.449(b)(3)(B), (b)(3)(C), (b)(3)(E), (b)(3)(G), (b)(5), (b)(7), and (b)(10). The department understands the seriousness of the appointment of a management team/individual and assures the commenter that an appointment would be considered only when the continuation of the contract was in jeopardy -- meaning this action would be taken only if, after repeated efforts by the department to ensure that problems were corrected, contract termination was the only other option. The department notes the Appropriations Act, Article II, sec.38, states that if the department determines a community center is unable or unwilling to fulfill its contractual obligations to provide services or to exercise adequate control over expenditures and assets, the department may take necessary steps, including the appointment of a management team, to protect the funds appropriated under the Act and ensure the continued provision of services. The department's goals in appointing a management team/individual are the continued provision of quality services and the prudent use of state funds. The proposed functions listed in sec.401.449(b)(3) that a management team/ individual may perform are necessary to accomplish these goals. Regarding the department's legal authority to appoint a management team/individual who will suspend the responsibility of and management by a board of trustees that was appointed by an independent unit of local government, the department responds that its legal authority is stated in the Appropriations Act, Article II, sec.38. The language in sec.401.449(b) provides procedures for accomplishing what is permitted by this rider in the Appropriations Act. One commenter acknowledged that the language contained in sec.401.449(b) was taken from Senate Bill 940 (75th Legislature), which did not complete the legislative process before the end of the session. The commenter requested that the department change and add language suggested by the commenter to achieve fidelity to the Legislature's intent and the commenter's agreements and understandings with the department. The commenter requested that language be added regarding a center's right to appeal the appointment of a management team/individual, the type of appeal available, and the situation in which the appointment is not stayed pending outcome of the appeal. The department responds by adding language as requested. The same commenter requested that language be added to sec.401.449(b)(3) clarifying the functions that a management team/individual may perform. The department responds by adding language to sec.401.449(b)(1) regarding the department's responsibility, which is consistent with the Appropriations Act, Article II, sec.38. The commenter requested that sec.401.449(b)(9) be revised to reflect the language in Senate Bill 940. The department responds by revising the language as requested. The same commenter requested language in sec.401.449(b)(10) be revised to state that all costs of the management team/individual be paid by the center with funds available through the department's contract with the center. The commenter stated that the department does not have the authority to encumber funds belonging to the center through a contract or other agreement with other center funding sources. The department responds by deleting the language which identifies or limits the source of funds that may be used for payment. 25 TAC sec.sec.401.441-401.448, 401.450-401.456 The sections are adopted under the Texas Health and Safety Code, Title 7, sec.532.015, which provides the Texas Mental Health and Mental Retardation Board with rulemaking powers and with the Texas Health and Safety Code, sec.534.001(e), which requires the Texas MHMR Board to adopt rules specifying the procedures for submitting, approving, and modifying a community center's plan. sec.401.441.Purpose. The purpose of this subchapter is to describe requirements by which community mental health and mental retardation centers are established and operated by a local agency with a plan approved by the Texas Mental Health and Mental Retardation Board in accordance with the Texas Health and Safety Code, sec.534.001(e). sec.401.442.Application. This subchapter applies to local agencies desiring to establish a new community mental health and mental retardation center or affiliate with an existing center and to all existing community mental health and mental retardation centers established under the Texas Health and Safety Code, Title 7, Chapter 534. sec.401.443.Definitions. The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise: Board of trustees - A body of not less than five nor more than nine persons selected and appointed in accordance with Texas Health and Safety Code, Title 7, sec.534.002 or sec.534.003, and sec.534.004, sec.534.005, and sec.534.0065, which has responsibility for the effective administration of a community center. Commissioner - The commissioner of the Texas Department of Mental Health and Mental Retardation. Community center - A center established under the Texas Health and Safety Code, Title 7, Chapter 534, Subchapter A. Current plan - The most recently approved initial, updated, or modified plan. Department - The Texas Department of Mental Health and Mental Retardation (TDMHMR). Facility - Any state hospital, state school, or state center. Initial plan - The plan developed by a board of trustees to establish a new community center. Local agency - A county, municipality, hospital district, school district, or any organizational combination of two or more of these which may establish and operate a community center. Local contribution - Funds or in-kind contribution by each local agency to a community center in the amount approved by the department, which includes local match if the center is a local authority. Local authority - An entity to which the Texas Mental Health and Mental Retardation Board delegates its authority and responsibility within a specified region for the planning, policy development, coordination, resource development and allocation, and for supervising and ensuring the provision of mental health services to persons with mental illness and/or mental retardation services to persons with mental retardation in one or more local service areas. Local match - In accordance with the Texas Health and Safety Code, sec.534.066, those funds or in-kind support from a local authority that are required to match some or all of the state funds the local authority receives pursuant to a contract with the department. Local service area - A geographic area composed of one or more Texas counties delimiting the population which may receive services from a local authority. Mental health services - All services concerned with research, prevention, and detection of mental disorders and disabilities and all services necessary to treat, care for, supervise, and rehabilitate persons with a severe and persistent mental illness which may be accompanied by chemical dependency or mental retardation. Mental retardation services - All services concerned with research, prevention, and detection of mental retardation and all services related to the education, training, habilitation, care, treatment, and supervision of persons with mental retardation, except the education of school-age persons that the public educational system is authorized to provide. Region - The area within the boundaries of the local agencies participating in the operation of a community center established under the Texas Health and Safety Code, Chapter 534, Subchapter A. State-operated community services (SOCS) - Community residential and nonresidential programs operated by the Texas Department of Mental Health and Mental Retardation. sec.401.444.Philosophy. (a) To realize the purpose and policy for community centers in Texas as described in the Texas Health and Safety Code, sec.534.0015, the provisions of this subchapter are intended to promote an effective relationship between state and local government in the form of local boards of trustees of community centers; these provisions recognize the importance of local initiatives and control in the development and expansion of community services. (b) The advantage for a local agency in forming a new community center or affiliating with an existing community center is the greater degree of local ownership and control of the services provided. The department recognizes the importance of local control vested in a community center. Therefore, the department encourages and supports the affiliation of local agencies with community centers. The following principles are important in the development of local services. (1) Persons receiving services, as well as their families and friends, should have a prominent role in determining which services best meet their needs. (2) Persons with mental illness or mental retardation should have the opportunity for integration into the activities and social fabric of the local community. (3) Decisions by the board of trustees of a community center should be made openly with consideration of the view of those affected by its decisions. (4) Local communities, persons receiving services and their families, community centers, and other service providers should work together to identify service delivery needs and plan a system that meets these needs. (5) Mental health and mental retardation services are of the best value for the public funds expended. sec.401.445.Process to Establish a New Community Center. (a) Letter of intent. If a local agency decides to establish a new community center, then the local agency submits a letter of intent to the commissioner outlining the proposed new center's region, governing structure, and other information pertinent to the formation of the proposed new center. (1) If the local agency submitting the letter of intent is not a county or counties, the letter must be accompanied by a letter of endorsement from the appropriate county judge or judges. (2) The commissioner designates staff who are knowledgeable of community center operations to review the letter of intent using the following criteria: (A) the rationale clearly supports the benefits of establishing a new center over affiliation with an existing center and the establishment of a new center is consistent with the department's mission for the development of community services in Texas; (B) the population of the region of the proposed new center is at least 200,000 or large enough to support a center; (C) comprehensive array of mental health and mental retardation services will be provided; (D) the extent of the local contribution supports the intent; and (E) providing services efficiently is financially viable. (3) The commissioner's response to the local agency's letter of intent is based on the review described in paragraph (2) of this subsection and is sent to the local agency by certified mail, return receipt requested. (A) If the commissioner approves the letter of intent, the response includes notification of such approval. (B) If the commissioner does not approve the letter of intent, the response includes the reasons for disapproval. (b) Appointment of board of trustees. If the local agency receives approval of its letter of intent, then it prescribes the criteria and procedures for the appointment of members of a board of trustees as described in the Texas Health and Safety Code, sec.534.002 or sec.534.003, and sec.534.004, sec.534.005, and sec.534.0065. The local agency prescribes and makes available for public review the elements listed in the Texas Health and Safety Code, sec.534.004(a). If more than one agency is involved, the local agencies shall enter into a contract of interlocal agreement that stipulates the number of board members and the group from which the members are chosen, as provided in the Texas Health and Safety Code, sec.534.003(c). The local agencies may renegotiate or amend the contract of interlocal agreement as necessary to change the: (1) method of choosing the board of trustees members; or (2) membership of the board of trustees to more accurately reflect the ethnic and geographical diversity of the region's population. (c) Initial plan. (1) Submission. The board of trustees develops and submits to the commissioner an initial written plan to provide effective mental health and mental retardation services to the residents of the proposed region. The board of trustees shall appoint a mental health planning advisory council and a mental retardation planning advisory council, each with at least 50% representation of persons who have received or are receiving services or their family members, to assist in developing the initial plan. The board of trustees shall also seek input through a public process (e.g., public hearings, focus groups, town meetings) from the citizens in the proposed region regarding local needs and priorities. The initial plan must include the following elements: (A) a comprehensive service description, which includes: (i) a statement of the mission, vision, values, and principles which provide the foundation of the proposed community center's local service delivery system; (ii) a definition of all populations to be served; (iii) a description of relevant internal and external assessments and evaluations which may provide direction for the local strategic planning process; (iv) a statement of local service needs and priorities to be addressed through a combination of resource development, expansion, reduction, and termination with the local service delivery system with the rationales for these selections; (v) a summary of needs assessment data and processes used in the determination of local service needs and priorities; (vi) identified gaps in services and supports in the local service delivery system which may assist in the determination of local service needs and priorities; (vii) a description of existing local mental health and mental retardation resources and planned resource development activities; (viii) a statement regarding innovative services considered and how these affect the local strategic planning process; (ix) a statement of management needs and priorities to support an effective and efficient local service delivery system; and (x) plan objectives, strategies, and outcomes. (B) a charter in the format shown in "Charter To Be a Community MHMR Center," referenced as Exhibit A of sec.401.454 of this title (relating to Exhibits). (C) a prospectus, which describes: (i) any proposed transfer of funds, assets, liabilities, personnel, and consumer and administrative records/information from state- operated community services (SOCS) or other community centers and the time frames for transfer; (ii) any identified additional available funds; (iii) the arrangements for uninterrupted delivery of services; and (iv) the impact, and resolution if warranted, of current contractual obligations. (2) Review. The commissioner designates staff who are knowledgeable of community center operations to review the initial plan. The designated staff may verify the information contained in the initial plan. If additional information or changes are required for the commissioner to recommend approval, then the commissioner will notify in writing the board of trustees and specify requirements for resubmission, including time frames. (3) Notification of intended recommendation. The department notifies the board of trustees of the commissioner's intention to recommend approval or disapproval of the initial plan to the Texas MHMR Board. If the commissioner intends to recommend disapproval or partial disapproval, then: (A) the board of trustees may request an administrative hearing "proposal for decision" in accordance with sec.sec.403.453-403.458 of Chapter 403, Subchapter O, of this title (relating to Administrative Hearings of the Department in Contested Cases). The hearing is not a hearing of a contested case under the Administrative Procedures Act and is limited to issues related to the initial plan. After all evidence has been heard, the administrative law judge closes the hearing. Within 30 days from the date the hearing closed, the administrative law judge submits a written proposal for decision to the commissioner; (B) the commissioner will accept the administrative law judge's recommendation in the proposal for decision unless the commissioner finds that the recommendation is not supported by substantial evidence; and (C) the department notifies the board of trustees of the commissioner's decision to recommend approval or disapproval of the initial plan to the Texas MHMR Board. If disapproval will be recommended, then no other appeal process is available. (4) Approval or disapproval. The commissioner recommends approval or disapproval of the initial plan to the Texas MHMR Board. The commissioner may recommend approval of portions of the initial plan and disapproval of other portions. The commissioner's recommendation shall include a written assessment of the initial plan by staff. A recommendation of approval requires that the assessment confirms that the initial plan properly fulfills the requirements of paragraph (1) of this subsection to provide a comprehensive array of mental health and mental retardation services, including screening and continuing care services for persons entering or leaving department facilities. (A) If the Texas MHMR Board approves the initial plan in its entirety, then the department issues a certificate of recognition as a community center. (B) If the Texas MHMR Board approves portions of the initial plan and such approved portions properly fulfill the requirements of paragraph (1) of this subsection, then it instructs the official record to reflect such portions as the approved initial plan in its entirety and the department issues a certificate of recognition as a community center. (C) If the Texas MHMR Board does not approve the initial plan, then the department provides written notification to the board of trustees in a timely manner of the reasons for disapproval and the requirements for resubmission, including time frames. (5) Community center operations. A community center may perform and operate only for the purposes and functions defined in its current plan. sec.401.446.Updating a Community Center's Current Plan. (a) Submission. On an assigned three-year cycle, or as requested by the Texas MHMR Board, or as necessary, the board of trustees of a community center shall submit to the commissioner an update of its current plan, which reflects the center's purposes and functions. The updated plan shall be in the format shown in "Charter To Be a Community MHMR Center," referenced as Exhibit A of sec.401.454 of this title (relating to Exhibits). (b) Review. The commissioner designates staff who are knowledgeable of community center operations to review the updated plan. The designated staff may verify the information contained in the updated plan. If additional information or changes are required for the commissioner to recommend approval, then the commissioner will notify in writing the board of trustees and specify requirements for resubmission, including time frames. (c) Notification of intended recommendation. The department notifies the board of trustees of the commissioner's intention to recommend approval or disapproval of the updated plan to the Texas MHMR Board. If the commissioner intends to recommend disapproval or partial disapproval, then: (1) the board of trustees may request an administrative hearing "proposal for decision" in accordance with sec.sec.403.453-403.458 of Chapter 403, Subchapter O, of this title (relating to Administrative Hearings of the Department in Contested Cases). The hearing is not a hearing of a contested case under the Administrative Procedures Act and is limited to issues related to the updated plan. After all evidence has been heard, the administrative law judge closes the hearing. Within 30 days from the date the hearing closed, the administrative law judge submits a written proposal for decision to the commissioner; (2) the commissioner will accept the administrative law judge's recommendation in the proposal for decision unless the commissioner finds that the recommendation is not supported by substantial evidence; and (3) the department notifies the board of trustees of the commissioner's decision to recommend approval or disapproval of the updated plan to the Texas MHMR Board. If disapproval will be recommended, then no other appeal process is available. (d) Approval or disapproval. The commissioner recommends approval or disapproval of the updated plan to the Texas MHMR Board. The commissioner may recommend approval of portions of the updated plan and disapproval of other portions. The commissioner's recommendation shall include a written assessment of the updated plan by staff. A recommendation of approval requires that the assessment confirm that the updated plan properly fulfills the requirements contained in "Charter To Be a Community MHMR Center," referenced as Exhibit A of sec.401.454 of this title (relating to Exhibits), to provide a comprehensive array of mental health and mental retardation services, including screening and continuing care services for persons entering or leaving department facilities. (1) If the Texas MHMR Board approves the updated plan in its entirety, then the department issues an updated a certificate of recognition as a community center. (2) If the Texas MHMR Board approves portions of the updated plan and such approved portions properly fulfill the requirements contained in "Charter To Be a Community MHMR Center," referenced as Exhibit A of sec.401.454 of this title (relating to Exhibits), then it instructs the official record to reflect such portions as the approved updated plan in its entirety and the department issues an updated certificate of recognition as a community center. (3) If the Texas MHMR Board does not approve the updated plan, then the department provides written notification to the board of trustees in a timely manner of the reasons for disapproval and the requirements for resubmission, if any, including time frames and the functions the community center may perform pending approval. If the Texas MHMR Board does not provide requirements for resubmission then the department no longer recognizes the entity as a community center. (e) Community center operations. A community center may perform and operate only for the purposes and functions defined in its current plan or as provided for in subsection (d)(3) of this section. sec.401.447.Modifying a Community Center's Current Plan. (a) Submission. Within the assigned three-year cycle for updating its current plan as described in sec.401.446 of this title (relating to Updating a Community Center's Current Plan), the board of trustees of a community center shall submit a modification of its current plan in accordance with this section as frequently as necessary to reflect material changes in the community center's local agencies, functions, or region. The modified plan shall be in the format shown in "Charter To Be a Community MHMR Center," referenced as Exhibit A of sec.401.454 of this title (relating to Exhibits). (1) If a local agency wants to affiliate with an existing community center and the existing center agrees, then the board of trustees of the existing center will submit to the commissioner for approval a modification of the center's current plan to reflect such affiliation, including: (A) any proposed expansion of the center's region; (B) a copy of the new contract of interlocal agreement; and (C) official documentation (e.g., resolution) confirming such intent to affiliate from each present local agency and the proposed affiliated local agency. (2) If a local agency wants to terminate its organizational combination with another local agency and end its affiliation with an existing community center, then the appointing authorities of the local agencies must terminate the original contract of interlocal agreement and enter into a new contract of interlocal agreement if more than one local agency remains. The board of trustees of the existing center submits a modification of the center's current plan to reflect the termination of such affiliation to the commissioner for approval, including; (A) any change of the center's region; (B) a copy of the new contract of interlocal agreement, if applicable; and (C) official documentation (e.g., resolution) from the local agency confirming its intent to terminate affiliation with the center. (3) If an existing community center wants to expand or reduce its functions or region, or otherwise substantially amend its functions, such as changing the population served, the services provided, or its name, then the board of trustees of the center submits a modification of the center's current plan to reflect such changes to the commissioner for approval. (b) Review. The commissioner designates staff who are knowledgeable of community center operations to review the modified plan. The designated staff may verify the information contained in the modified plan. If additional information or changes are required for staff to recommend approval, then staff will notify in writing the board of trustees and specify requirements for resubmission, including time frames. (c) Approval or disapproval. Staff recommends approval or disapproval of the modified plan to the commissioner. Staff may recommend approval of portions of the modified plan and disapproval of other portions. Staff may also recommend that the modified plan be submitted as an updated plan for approval by the Texas MHMR Board. (1) If the commissioner approves the modified plan, then the department notifies the board of trustees in writing of the approval in a timely manner. (2) If the commissioner approves portions of the modified plan then the commissioner instructs the official record to reflect such portions as the approved modified plan. The department shall notify the board of trustees in writing of the portions included in the approved modified plan in a timely manner. (3) If the commissioner does not approve the modified plan, then the department provides written notification to the board of trustees in a timely manner of the reasons for disapproval and the requirements for resubmission, if any, including time frames. The requirement for resubmission may be submission as an updated plan for approval by the Texas MHMR Board. (d) Community center operations. A community center may perform and operate only for the purposes and functions defined in its current plan. sec.401.448.Dissolution or Merger of Community Centers. (a) Dissolution. If a community center decides to cease operations and dissolve, the center's board of trustees and each local agency shall inform the commissioner in writing of such a decision. The department, the board of trustees, and each local agency shall agree to a plan of dissolution that addresses at least the following factors: (1) the center's assets and liabilities (including personnel); (2) necessary audits to be conducted; (3) closure activities, including arrangements for uninterrupted delivery of services; (4) the transfer, archival, and security of records and information; and (5) the future plans for the region's service delivery system (e.g., affiliation with an existing center, establishment of a new center, reliance upon a state- operated community services (SOCS)). (b) Merger. If two or more existing community centers agree to merge into a new community center, then the boards of trustees of the involved centers submit to the commissioner an initial plan in accordance with sec.401.445(c) of this title (relating to Process to Establish a New Community Center). The initial plan must represent the services to be provided in the combined expanded region and include a copy of the new contract of interlocal agreement and official documentation (e.g., resolution) confirming intent to merge from each local agency involved. sec.401.450. Standards of Administration for Boards of Trustees of Community Centers. (a) Each board of trustees is accountable to the department, pursuant to the Texas Health and Safety Code, sec.534.033, for its programs that: (1) use department funds or local match; (2) provide core or required services; (3) provide services to former consumers of a department facility; or (4) are affected by litigation in which the department is a defendant. (b) Each board of trustees is responsible for: (1) assuring the submission of periodic financial and performance reports to the department in a format and schedule prescribed by the department; (2) instituting effective management procedures which assure the maximum utilization of all funds and facilitates the achievement of the goal of delivering services of high quality in a cost effective manner; (3) complying with the Texas Health and Safety Code, sec.534.022, when financing property and improvements; (4) retaining all financial records, supporting documents, statistical records, and any other documents pertinent to its community center budgets, contracts, performance/workload measure, and persons served for a period of five years. If audit discrepancies have not been resolved at the end of five years, the records must be retained until resolution; (5) complying with the Open Meetings Act, Texas Government Code, Chapter 551; (6) requiring depositories of community center funds to secure deposits through the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Corporation, or to secure deposits using collateral in a manner that protects the deposited funds; (7) submitting a copy of the approved minutes of board of trustees meetings to the department and to each local agency in accordance with the Texas Health and Safety Code, sec.534.009(d); and (8) ensuring community center staff abide by applicable laws, department rules, and standards. (c) Each board of trustees is accountable to the department and to each local agency for receiving appropriate training as required by the Texas Health and Safety Code, sec.534.006, and this subsection. (1) Before assuming office, new members must receive initial training, including, but not limited to: (A) the importance of local planning and the roles and functions of the board of trustees, planning advisory committees, community center staff, and other service organizations; (B) the enabling legislation that created the community center; (C) the current philosophies and program principles on which service delivery systems are founded, information about the service and support needs of people with mental illnesses, mental retardation, and related conditions, and the range of environments in which those services may be delivered; (D) an overview of mental illnesses, mental retardation, and related conditions; (E) an overview of the current local and state service delivery system, including descriptions of the types of mental health and mental retardation services provided by the community center; (F) the community center's budget for the current program year; (G) the results of the most recent formal audit of the community center; (H) the requirements of the Open Meetings Act, Texas Government Code, Chapter 551, and the Open Records Act, Texas Government Code, Chapter 552; (I) the requirements of laws concerning conflict of interest and other laws relating to public officials; (J) any ethics policies adopted by the community center; and (K) applicable state and federal laws, rules, standards, and regulations. (2) Utilizing input from persons who have received or are receiving services, their family members, and advocates, the training programs must provide orientation in the perspectives and issues of persons receiving services. (3) Annual training must be provided for current board of trustees members, which is administered by the professional staff of the community center, including the center's legal counsel. (4) Guidelines for training are developed and updated as necessary by an advisory committee for the department, which includes representatives of advocacy organizations broadly representative of the interests of persons with mental illness or mental retardation and their families, and representatives of boards of trustees. The current guidelines are referenced as Exhibit B in sec.401.454 of this title (relating to Exhibits). (d) Each board of trustees may accept special funds for long-range projects and plans. These funds must be kept separate from the community center's operating budget and may not be used as local match. An annual accounting of these reserve funds (center trust, endowment, or foundation resources) must be made to the department. (e) Each board of trustees must obtain department approval for any building alterations, renovation, or repair maintenance expenses exceeding $50,000 for each project per fiscal year per community center if department funds or local match be used. In accordance with the review process and to avoid undue delays, a board of trustees must seek advance written approval from the department at least 30 days prior to the release of the project for competitive bids. (f) Each board of trustees must ensure that its community center receives written approval from the department prior to purchase, lease-purchase, or any other transaction which will result in the community center's ownership of real property, including buildings, if any department funds or local match are involved. In addition, for acquisition of nonresidential property, the community center must notify each local agency not later than the 31st day before it enters into a binding obligation to acquire the property. A community center must provide written notification to the department and each local agency not later than the 31st day before it enters into a binding obligation to acquire real property, including a building, if the acquisition does not involve the use of department funds or local match. Upon request, the commissioner may waive the 30-day requirement to notify the department on a case-by-case basis. Notification of the department is not required for donations of real or personal property under the Texas Health and Safety Code, Title 7, sec.534.018 or sec.534.019, that do not require the expenditure of any funds by the community center and that have been approved by the board of trustees. (1) All notices and requests for approval are submitted on the TXMHMR Property Review Form and accompanied by supporting information including, but not necessarily limited to: (A) the reason for purchasing the property or a brief explanation of the purpose it will serve; (B) a summary of the plan for paying for the property, including a statement regarding whether department funds or local match will be used either directly or in the retirement of any debt associated with the acquisition; (C) if unimproved, an assessment of the suitability of the property for construction purposes or, if improved, an assessment of the current condition of the buildings; (D) an independent appraisal of the real estate the community center intends to purchase conducted by an appraiser certified by the Texas Appraiser Licensing and Certification Board; however, the board of trustees may waive this requirement if the purchase price is less than the value listed for the property by the local appraisal district and the property has been appraised by the local appraisal district within the past two years; (E) a statement that the board of trustees and executive staff are not participating financially in the transaction and will derive no personal benefit from the transaction; and (F) a statement detailing the need to waive the 30-day requirement if a waiver is being requested. (2) A community center may not purchase or lease-purchase property for an amount that is greater than the property's appraised value unless; (A) the purchase or lease-purchase of that property at that price is necessary; (B) the board of trustees documents in the official minutes the reasons why the purchase or lease-purchase is necessary at that price; and (C) a majority of the board approves the transaction. sec.401.453.Determination of Salaries of Community Center Employees. Pursuant to the Texas Health and Safety Code, Title 7, sec.534.011, the board of trustees of a community center that does not have a contract with the department must determine the salaries of its employees utilizing only one of the methods described in paragraphs (1)- (3) of this section. The method for determining salaries of community center employees described in a contract between a community center and the department supersedes the requirements in this section. (1) Market analysis. If the board of trustees chooses to determine salaries and benefits with a market analysis, documentation must be maintained on which studies are being used and the positions to which they pertain. Documentation must be updated every two years. Records maintenance must include: (A) the current position documentation which describes the actual work being performed in the positions; and (B) evidence of an approximate job match between the community center position and the documentation obtained in the job market. (2) Internal study. If the board of trustees chooses to determine salaries and benefits with an internal salary study, the pay structure must be designed to recognize the internal relationships among jobs of the center. The internal salary study must also take into consideration market demands that permit the community center to compete with other employers for available and desirable human resources. The internal salary study process must include the: (A) current position documentation which describes the actual work being performed in the positions; (B) a method of establishing the internal relationships of jobs which may be either whole job ranking or point-factor job evaluation methodologies; (C) identification of competitive markets that are appropriate for various types of positions, such as: (i) state salaries; (ii) local government salaries; (iii) private sector salaries; and (iv) geographic considerations (i.e., local area, regional or national issues); (D) compensation comparisons which include both cash compensation and benefits to identify the community center's competitive posture in all reward areas; and (E) proposed compensation adjustments which consider current market competitive posture versus desired position and general wage increase trends. (3) State Classification Plan. If the board of trustees chooses to use the State Classification Plan to determine salaries, the community center must: (A) compare current classification specifications with state classification plan job specifications; (B) compare current salaries used with the salary schedule in Article IX, of the current appropriations act. All Steps 01 through 08 may be used within pay groups. Amounts less than Step 01 may be authorized by the board of trustees as well; and (C) select an appropriate classification to determine the compensation for each position. If a similar position cannot be found in the State Classification Plan, the board of trustees may utilize the previously described market analysis or internal salary study to determine the compensation for the position. In lieu of these two methods, a board of trustees may petition the commissioner to exclude such a position, at a specific rate, from the State Classification Plan by submitting: (i) a written proposal for an exemption for the position needed, stating the salary; (ii) current position documentation which describes the actual work being performed in the position; and (iii) a statement of the level of compensation sought. sec.401.455.References. Reference is made in this subchapter to the following federal and state laws and rules: (1) Texas Health and Safety Code, Title 7, Chapter 534; (2) Texas Government Code, Chapters 551, 552, and 783; (3) Civil Rights Act of 1964; (4) Americans With Disabilities Act(ADA) of 1990; (5) Chapter 401, Subchapter D of this title (relating to Contracts Management for Community-Based Services); and (6) Chapter 403, Subchapter O of this title (relating to Administrative Hearings of the Department in Contested Cases). sec.401.456.Distribution. This subchapter will be distributed to: (1) members of the Texas MHMR Board; (2) executive, management, and program staff of Central Office; (3) chairpersons, boards of trustees, and executive directors of community centers; (4) executive directors of state-operated community services (SOCS); and (5) advocacy organizations. 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 25, 1997. TRD-9712765 Ann Utley Chairman Texas Department of Mental Health and Mental Retardation Effective date: October 15, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 206-4516 25 TAC sec.401.449 The sections are adopted under the Texas Health and Safety Code, Title 7, sec.532.015, which provides the Texas Mental Health and Mental Retardation Board with rulemaking powers and with the Texas Health and Safety Code, sec.534.001(e), which requires the Texas MHMR Board to adopt rules specifying the procedures for submitting, approving, and modifying a community center's plan. sec.401.449.Contracting for Services. (a) A community center may contract for services in accordance with applicable laws, the appropriations act, and department rules, including but not limited to: (1) Texas Health and Safety Code, sec.534.015(c), which permits the board of trustees, with the commissioner's approval, to contract with the governing body of a county or municipality not in its region to provide services to residents of that county or municipality; and (2) Chapter 401, Subchapter D of this title (relating to Contracts Management for Community-based Services). (b) The department may designate a community center as a local authority or otherwise contract for services with the community center in accordance with the provisions of Chapter 401, Subchapter D of this title (relating to Contracts Management for Community- based Services), and as allowed by state law, including the appropriations act. (1) If the department designates a community center as a local authority it will enter into a contract for services with the community center, which requires local match from the center. If the center is unable or unwilling to fulfill its contractual obligations to provide services or to exercise adequate control over expenditures and assets, then the commissioner may appoint a management team or an individual to protect the funds appropriated under the Appropriations Act and ensure the continued provision of services. The appointment of a management team/individual to manage and operate the community center may be made if the commissioner finds: (A) the center has wilfully or negligently failed to discharge its duties under the contract; (B) an officer or employee of the center has misused state or federal funds; (C) an officer or employee of the center has engaged in a fraudulent act, transaction, practice, or course of business; (D) the life, health, welfare, or safety of a person served by the center is or may be endangered by an act or omission of the center; (E) the center has failed to maintain fiscal records in accordance with the Texas Government Code, Chapter 783; (F) the center has failed to maintain proper control over its assets in accordance with the Texas Government Code, Chapter 783; (G) the center has failed to respond as prescribed by the commissioner to a deficiency in a review or audit; or (H) the center has failed to comply with applicable sections of the Texas Health and Safety Code, Chapter 534, and department rules. (2) The department shall notify in writing the community center and each local agency of the appointment of the management team/individual and the circumstances on which the appointment is based. (3) The community center may appeal an appointment of a management team/individual in accordance with this paragraph. The filing of a notice of appeal does not stay the appointment of a management team/individual if the appointment is made on a finding under paragraph (1)(D) of this subsection. (A) The community center appeals the appointment of a management team\ individual by requesting an administrative hearing "proposal for decision" in accordance with sec.sec.403.453-403.458 of Chapter 403, Subchapter O, of this title (relating to Administrative Hearings of the Department in Contested Cases). The hearing is not a hearing of a contested case under the Administrative Procedures Act and is limited to issues related to the finding(s) under paragraph (1) of this section for which the management team/individual was appointed. After all evidence has been heard, the administrative law judge closes the hearing. Within 30 days from the date the hearing closed, the administrative law judge submits a written proposal for decision to the commissioner. (B) The commissioner will accept the administrative law judge's recommendation in the proposal for decision unless the commissioner finds that the recommendation is not supported by substantial evidence. (C) The department notifies the community center of the commissioner's decision to uphold or reverse the original decision to appoint a management team/individual. If the decision is to uphold the original decision, then no other appeal process is available. (4) The management team/individual may perform any or all of the following functions as defined by the commissioner: (A) evaluate, redesign, modify, administer, supervise, or monitor the management, procedures, or operations of the center; (B) hire, supervise, discipline, reassign, or terminate employment of employees of the center; (C) reallocate resources and manage the assets of the center; (D) provide technical assistance to officers and employees of the center and require or provide employee training; (E) approve or disapprove each financial transaction and expenditure the center makes and each contract the center executes; (F) redesign, modify, or terminate any of the center's programs or services; (G) direct the board of trustees, executive director, chief financial officer, or other fiscal or programmatic officer of the center to take action; (H) exercise all powers and duties of the officers and employees of the center; and (I) make recommendations to each local agency regarding the removal of some or all members of the center's board of trustees. (5) The management team/individual is authorized to use only the community center's funds or assets that are provided or required by the contract (i.e., state funds, federal funds for which the department has oversight, and local match). (6) The powers and duties of the board of trustees are exercised under the supervision of the management team/individual. (7) The management team/individual reports its activities to the commissioner and the board of trustees monthly. (8) The commissioner reviews and evaluates the performance of the center each month to determine the feasibility of restoring the responsibility of management and operation of the center to the board of trustees. (9) The appointment of a management team/individual continues until: (A) the commissioner determines that circumstances which support a finding under paragraph (1) of this subsection no longer exist; or (B) the department cancels the contract with the center. (10) When the commissioner finds that circumstances which support a finding under paragraph (1) of this subsection no longer exist, then the commissioner shall terminate the powers and appointment of the management team/individual. Following termination, the responsibility of managing and operating the center is restored to the authorized officers and employees. (11) The commissioner may direct that all costs of the management team/individual be paid by the center. 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 25, 1997. TRD-9712764 Ann Utley Chairman Texas Department of Mental Health and Mental Retardation Effective date: October 15, 1997 Proposal publication date: July 18, 1997 For further information, please call: (512) 206-4516 25 TAC sec.sec.401.451-401.463, 401.465, 401.466 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts the repeals of sec.sec.401.451-401.463, 401.465, and 401.466 of Chapter 401, Subchapter G, concerning community mental health and mental retardation centers without changes to the proposed text as published in the June 24, 1997, issue of the Texas Register (22 TexReg 5995). New sec.sec.401.441-401.456, concerning the same, which replace the repealed sections are contemporaneously adopted in this issue of the Texas Register. The sections are repealed to allow the adoption of new sections. No public comment was received on the proposed repeals. The repeals of these sections are adopted under the Texas Health and Safety Code, Title 7, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers. 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 25, 1997. TRD-9712763 Ann Utley Chairman Texas Department of Mental Health and Mental Retardation Effective date: October 15, 1997 Proposal publication date: June 24, 1997 For further information, please call: (512) 206-4516 CHAPTER 402.Client Assignment and Continuity of Services SUBCHAPTER H.Placement Appeals Procedures-Mental Retardation Services 25 TAC sec.sec.402.281-402.298 The Texas Department of Mental Health and Mental Retardation (department)adopts the repeal of sec.sec.402.281- 402.298 of Chapter 402, Subchapter H, concerning placement appeals, without changes to the text as proposed in the Tuesday, July 29, 1997, issue of the Texas Register (22 TexReg 7008). The repeal is adopted because the appeal procedures described in the subchapter are no longer necessary as a result of changes made to Chapter 402, Subchapter I concerning the movement of individuals with mental retardation from department facilities. No written comments were submitted concerning the proposed repeal. The repeal is adopted under the Texas Health and Safety Code, sec.532.015, which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority. 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 25, 1997. TRD-9712762 Ann Utley Chairman Texas Department of Mental Health and Mental Retardation Effective date: October 15, 1997 Proposal publication date: July 29, 1997 For further information, please call: (512) 206-4516 CHAPTER 405.Client (Patient) Care SUBCHAPTER BB.Admissions, Transfers, Furloughs, and Discharges--State Schools for the Retarded 25 TAC sec.405.725 The Texas Department of Mental Health and Mental Retardation (department)adopts the repeal of sec.405.725, concerning determination of the least restrictive environment, of Chapter 405, Subchapter BB, concerning admissions, transfers, furloughs, and discharges -- state schools for the retarded, without changes to the text as proposed in the Tuesday, July 29, 1997, issue of the Texas Register (22 TexReg 7009). The repeal is adopted because guidelines for determining the most appropriate living environment for persons receiving residential mental retardation services have been incorporated into Chapter 402, Subchapter I, concerning movement of individuals with mental retardation from departmental facilities. No written comments were submitted concerning the proposed repeal. The repeal is adopted under the Texas Health and Safety Code, sec.532.015, which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority. 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 25, 1997. TRD-9712759 Ann Utley Chairman Texas Department of Mental Health and Mental Retardation Effective date: October 15, 1997 Proposal publication date: July 29, 1997 For further information, please call: (512) 206-4516 SUBCHAPTER GG.Admissions, Prescribing of Psychoactive Drugs 25 TAC sec.sec.405.821-405.835 The Texas Department of Mental Health and Mental Retardation (department)adopts the repeal of sec.sec.405.821-405.835 of Chapter 405, Subchapter GG, concerning prescribing of psychoactive drugs, without changes to the text as proposed in the Tuesday, July 29, 1997, issue of the Texas Register (22 TexReg 7009). The repeal is adopted because guidelines for prescribing psychoactive drugs have been incorporated into Chapter 405, Subchapter A, concerning prescribing of medications-- mental health, and Chapter 405, Subchapter B, concerning prescribing of medications--mental retardation facilities. No written comments were submitted concerning the proposed repeal. The repeal is adopted under the Texas Health and Safety Code, sec.532.015, which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority. 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 25, 1997. TRD-9712761 Ann Utley Chairman Texas Department of Mental Health and Mental Retardation Effective date: October 15, 1997 Proposal publication date: July 29, 1997 For further information, please call: (512) 206-4516 TITLE 37. PUBLIC SAFETY AND CORRECTIONS PART V. Texas Board of Pardons and Paroles CHAPTER 145.Parole Revocation of Administrative Release (Parole, Mandatory, Supervision, and Executive Clemency) 37 TAC sec.145.44 The Texas Board of Pardons and Paroles adopts an amendment to 37 TAC sec.145.44, concerning the procedure after waiver of the preliminary hearing, with changes to the proposed text as published in the June 17, 1997, issue of the Texas Register (22 TexReg 5818). The Board proposes an amendment to sec.145.44 for the purpose of streamlining hearing procedures to allow the designee of the Board to schedule a revocation hearing without Board sign-off following waiver of the preliminary hearing. A technical change was made to the wording of the proposed text substituting the word "may" for "shall" in the decision of the board panel to proceed to a revocation hearing. No comments were received regarding adoption of the amendment. The amended rule is proposed under the Code of Criminal Procedure, Article 42.18, sec.14 (a) - (c), which vests the Board with authority to promulgate rules under which releasees are to be heard on parole revocations. sec.145.44. Procedure after Waiver of Preliminary Hearing. Following the waiver of the right to a preliminary hearing, the board panel or a designee of the board may proceed to a revocation hearing. 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 29, 1997. TRD-9712861 Laura McElroy General Counsel Texas Board of Pardons and Paroles Effective date: October 20, 1997 Proposal publication date: June 17, 1997 For further information, please call: (512) 463-1883 37 TAC sec.145.48 The Texas Board of Pardons and Paroles adopts the repeal of 37 TAC sec.145.48 concerning the procedure for the pre-revocation hearing conference, without changes to the proposed text as published in the June 17, 1997, issue of the Texas Register (22 TexReg 5819). The Board proposes the repeal of sec.145.48 for the purpose of eliminating an obsolete rule. No comments were received regarding adoption of the repeal. The repeal is proposed under the Code of Criminal Procedure, Article 42.18, 14 (a) - (c), which vests the Board with authority to promulgate rules under which releasees are to be heard on parole revocations. 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 29, 1997. TRD-9712862 Laura McElroy General Counsel Texas Board of Pardons and Paroles Effective date: October 20, 1997 Proposal publication date: June 17, 1997 For further information, please call: (512) 463-1883 37 TAC sec.145.50 The Texas Board of Pardons and Paroles adopts an amendment to 37 TAC sec.145.50 concerning the procedure following a probable cause decision in a preliminary hearing, with changes to the proposed text as published in the June 17, 1997, issue of the Texas Register (22 TexReg 5819). The Board proposes an amendment to sec.145.50 for the purpose of streamlining hearing procedures to allow the designee of the Board to schedule a revocation hearing without board sign-off following a probable cause decision in a preliminary hearing. One written comment was received, in which the commenter suggested: (1) that the designee of the Board have the option of recommending a non-revocation action to the Board; and (2) the Board's designee should not be required to make a finding regarding custodial status as part of the probable cause decision. In response to the comment, changes were made in proposed Subsection (d) to: (1) change "shall" to "may" to provide the designee of the Board the option to recommend alternatives to revocation; and (2) delete the requirement that the probable cause determination include a finding that the releasee "should remain in custody pending a revocation hearing," retaining the requirement that the finding should be "whether there is probable cause to proceed to a revocation hearing." The amended rule is proposed under the Code of Criminal Procedure, Article 42.18, sec.14 (a)-(c), which vests the Board with authority to promulgate rules under which releasees are to be heard on parole revocations. sec.145.50.Preliminary Hearing. (a) The board panel or a designee of the board shall conduct the preliminary hearing. (b) The preliminary hearing shall be a hearing conducted to determine if probable cause exists that the releasee violated the rules and conditions of parole or mandatory supervision. (c) At the conclusion of the hearing, the hearing officer shall collect and prepare: (1) All documents and exhibits offered or admitted into evidence at the preliminary hearing; (2) A summary of the evidence relied upon to formulate the hearing officer's findings; and (3) the tape recording of the hearing. (d) If the decision of the board panel or a designee of the board is that there is probable cause to proceed to a revocation hearing, the board panel or a designee of the board may schedule a revocation hearing. 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 29, 1997. TRD-9712864 Laura McElroy General Counsel Texas Board of Pardons and Paroles Effective date: October 20, 1997 Proposal publication date: June 17, 1997 For further information, please call: (512) 463-1883 PART VII. Texas Commission on Law Enforcement Officer Standards and Education CHAPTER 221. Proficiency Certificates and Other Post-Basic Licenses Division 37 TAC sec.sec.221.15, 221.17, 221.19, 221.21, 221.23, 221.25, 221.27, 221.29, 221.31 The Texas Commission on Law Enforcement Officer Standards and Education adopts new sec.sec.221.15, 221.17, 221.19, 221.21, 221.23, 221.25, 221.27, 221.29, and 221.31, concerning proficiency certificates, without changes to the proposed text as published in the July 4, 1997, issue of the Texas Register (22 TexReg 6257). These sections were developed pursuant to an ongoing review and reorganization of the Commission's rules. The reorganization plan was developed by staff and considered by the Commission's Ad Hoc Rules Committee in response to concerns that the Commission's Administrative Code had become outdated, too complex and difficult to understand. Included in this ongoing reorganization is a schedule for renumbering certain sections of the rules as a way to more clearly label specific topics and to more fully utilize the chapter numbers available in the Administrative Code for the Commission's rules. These new sections will replace current sec.sec.211.85, 211.103 and 211.106, concerning proficiency certificates, which will be repealed. In addition to provisions contained in the current rules, the new sections contain a number of new provisions. Section 221.15 provides that a proficiency certificate may not be issued if a license holder has not completed continuing education requirements during the most recent reporting period. Continuing education contributes to the proficiency of the law enforcement professionals the Commission licenses. In fact, the Legislature has mandated that certain officers receive continuing education in particular topic areas related to their duties. Staff reasoned, and the Commissioners concurred, that issuance of a proficiency certificate to a licensee who had not completed the required continuing education would falsely indicate that the licensee was up-to-date with all educational requirements, and that delaying issuance of proficiency certificates until the individual had complied with continuing education requirements would more accurately reflect the licensee's proficiency. Section 221.17 and sec.221.19 require that license holders must have at least one year of experience before they are issued a basic peace officer or jailer certificate. Currently, basic certificates are issued immediately upon licensing. Staff reasoned, and the Commissioners concurred, that requiring one year of experience would more accurately reflect a basic level of proficiency. Other nonsubstantial changes include a clarification of the requirement for an emergency first aid and lifesaving course to qualify for a mental health peace officer certificate. The new rule provides that such course must be taken no more than six months prior to applying for the certificate. In addition, Commission course titles were substituted in a number of sections for generic course topics for clarity. No comments were received regarding the adoption of these new sections. The Commission is authorized to adopt new rules by Texas Government Code sec.415.010 (Vernon 1996). 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 24, 1997. TRD-9712725 Edward T. Laine Chief, Professional Standards and Administrative Operations Texas Commission on Law Enforcement Officer Standards and Education Effective date: November 1, 1997 Proposal publication date: July 4, 1997 For further information, please call: (512) 450-0188 TITLE 40. SOCIAL SERVICES AND ASSISTANCE PART I. Texas Department of Human Services CHAPTER 3. Income Assistance Services SUBCHAPTER I. Income 40 TAC sec.3.903 The Texas Department of Human Services (DHS) adopts new sec.3.903, concerning Income, without changes to the proposed text as published in the June 6, 1997, issue of the Texas Register (22 TexReg 5620). The text will not be republished. The justification for the new section is to implement the requirement for clients to apply for and accept federal benefits if referred and approved. The new section will function by ensuring that the department will be in compliance with state legislation. The department received a comment from the Texas Legal Services Center. A summary of the comment and the response follow. Comment: The absence of guardianship services likely has resulted in some gravely incapacitated persons not being able to apply for SSI because they cannot do so themselves, and they have no one who can do so for them. Response: DHS included good cause exemptions to the requirement to pursue income. Good cause is established for Supplemental Security Income (SSI) referrals, if the client is physically or mentally unable to complete the SSI application process, and DHS fails to or is unable to provide assistance needed to complete the SSI application process. Comment: DHS received a suggestion to include the following language in the final rule: "No sanction can be imposed for failure to complete the SSI application process, until a hearing officer has independently determined that the client is neither physically nor mentally unable to complete the SSI application process, and that TDHS has not failed to nor been unable to provide assistance needed to complete the SSI application. The determination required by the hearing officer may be made as part of an appeal by the client. If the client does not timely appeal a notice of proposed sanction, the client shall be deemed to have appealed it, and the independent determination will be made by a hearing officer sua sponte. Regardless of whether the determination is made at the request of the client or sua sponte, TDHS has the burden of proof." Response: DHS hearing officers are not trained to determine anyone's physical or mental incapacity. In addition, automatic appeals are not scheduled for any adverse actions which affect eligibility. Good cause provisions dealing with these situations were included in the proposed rules. Comment: Additional language was suggested for inclusion in the final rule: "TDHS will provide assistance with the application as requested by the client. If the client does not request assistance, but staff of TDHS deem that assistance would make an application more likely to succeed, staff will offer all possible assistance. Good cause exemptions will be granted to individuals unable to complete the application process and who have no one who could provide assistance to them in negotiating the application process." Response: Good cause provisions dealing with these situations were included in the proposed rules. The new section is adopted under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs. The new section implements the Human Resources Code sec.sec.22.001-22.030. 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 24, 1997. TRD-9712706 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: January 1, 1998 Proposal publication date: June 6, 1997 For further information, please call: (512) 438-3765 CHAPTER 15. Medicaid Eligibility The Texas Department of Human Services (DHS) adopts amendments to sec.sec.15.100, 15.435, 15.443, 15.450, 15.460, and 15.621, concerning General Information, without changes to the proposed text as published in the August 12, 1997, issue of the Texas Register (22 TexReg 7465). The justification for the amendments is to clarify policy to ensure consistent application statewide. The amendments will function by ensuring consistent application of policy statewide. No comments were received regarding adoption of the amendments. SUBCHAPTER A. General Information 40 TAC sec.15.100 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Government Code sec.531.021, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment implements sec.sec.22.001-22.030 and 32.001-32.042 of the Human Resources 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 24, 1997. TRD-9712707 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: November 1, 1997 Proposal publication date: August 12, 1997 For further information, please call: (512) 438-3765 SUBCHAPTER D. Resources 40 TAC sec.15.435, sec.15.443 The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Government Code sec.531.021, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendments implement sec.sec.22.001-22.030 and 32.001-32.042 of the Human Resources 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 24, 1997. TRD-9712728 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: November 1, 1997 Proposal publication date: August 12, 1997 For further information, please call: (512) 438-3765 SUBCHAPTER E. Income 40 TAC sec.15.450, sec.15.460 The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Government Code sec.531.021, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendments implement sec.sec.22.001-22.030 and 32.001-32.042 of the Human Resources 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 24, 1997. TRD-9712709 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: November 1, 1997 Proposal publication date: August 12, 1997 For further information, please call: (512) 438-3765 SUBCHAPTER G. Application for Medicaid 40 TAC sec.15.621 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Government Code sec.531.021, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment implements sec.sec.22.001-22.030 and 32.001-32.042 of the Human Resources 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 24, 1997. TRD-9712710 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: November 1, 1997 Proposal publication date: August 12, 1997 For further information, please call: (512) 438-3765 PART XIX. Texas Department of Protective and Regulatory Services CHAPTER 700. Child Protective Services SUBCHAPTER Q. Purchased Protective Services 40 TAC sec.700.1733 The Texas Department of Protective and Regulatory Services (TDPRS) adopts an amendment to sec.700.1733, concerning Residential Therapeutic Care, without changes to the proposed text as published in the August 5, 1997, issue of the Texas Register (22 TexReg 7212). The justification for the amendment is to allow the TDPRS executive director, in certain situations, to extend a child's eligibility for residential treatment up to an additional 12 months. The amendment will function by ensuring that children with severe special needs are more likely to have their treatment needs met. During the comment period, TDPRS received a comment from two individuals in support of the proposal. The amendment is adopted under the Texas Family Code, Title 5, Chapters 261 and 264, which authorizes the department to provide services to alleviate the effects of child abuse and neglect. In addition, the amendment is adopted under Public Law Number 96-272, Title I, which authorizes the department to administer foster-care and adoption assistance programs provided for under the Social Security Act, Title IV-E. The amendment is also adopted under the Human Resources Code (HRC), Chapter 40, which describes the services authorized to be provided by the Texas Department of Protective and Regulatory Services; and authorizes the department to enter into agreements with federal, state, or other public or private agencies or individuals to accomplish the purposes of the programs authorized by the HRC; and grants authority to contract to the department. The amendment implements the HRC, Chapter 40, which authorizes the department to enter into agreements with federal, state, or other public or private agencies or individuals to accomplish the purposes of the programs authorized by the HRC and which authorizes the department to enter into contracts as necessary to perform any of its powers or duties. 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 29, 1997. TRD-9712892 C. Ed Davis Deputy Director, Legal Services Texas Department of Protective and Regulatory Services Effective date: October 20, 1997 Proposal publication date: August 5, 1997 For further information, please call: (512) 438-3765 CHAPTER 710. Protection of Clients and Staff The Texas Department of Protective and Regulatory Services (TDPRS) adopts amendments to sec.sec.710.1-710.3, 710.7, and 710.8, and adopts the repeal of sec.sec.710.81-710.87, concerning Protection of Clients and Staff, without changes to the proposed text as published in the August 5, 1997, issue of the Texas Register (22 TexReg 7213). The justification for the amendments is to implement legislative changes related to investigations of abuse, neglect, and exploitation in facilities operated by the Texas Department of Mental Health and Mental Retardation (TDMHMR). The amendments implement a priority system for investigations conducted in TDMHMR facilities and related programs; modifies existing timeframes for the completion of investigations; and clarifies agency policy regarding the resolution of disagreements on investigation findings. The repeals are adopted because the 73rd Legislature transferred to the Texas Department of Health the responsibility for investigations in private psychiatric hospitals. TDPRS is also changing the name of Subchapter A to "Abuse, Neglect, and Exploitation of Persons Served by TDMHMR Facilities and State-Operated Community Services" and repealing Subchapter C titled "Patient Abuse in Private Psychiatric Hospitals." The amendments and repeals will function by increasing efficiency in investigations of abuse, neglect, and exploitation in facilities operated by Texas Department of Mental Health and Mental Retardation and state-operated community services. No comments were received regarding adoption of the amendments and repeals. SUBCHAPTER A. Abuse, Neglect, and Exploitation of Persons Served by TDMHMR Facilities and State-Owned Community Services 40 TAC sec.sec.710.1-710.3, 710.7, 710.8 The amendments are adopted under the Human Resources Code, Title 2, Chapter 48, which provides the department with the right to investigate reports of abuse, exploitation, or neglect of an elderly or disabled person. The amendments implement sec.1.06 of Acts 1991, 72nd Legislature, 1st Called Session, Chapter 15, as amended by Acts 1993, 73rd Legislature, Chapter 747, sec.1. 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 29, 1997. TRD-9712893 C. Ed Davis Deputy Director, Legal Services Texas Department of Protective and Regulatory Services Effective date: October 20, 1997 Proposal publication date: August 5, 1997 For further information, please call: (512) 438-3765 SUBCHAPTER C. Patient Abuse in Private Psychiatric Hospitals 40 TAC sec.sec.710.81-710.87 The repeals are adopted under the Human Resources Code, Title 2, Chapter 48, which provides the department with the right to investigate reports of abuse, exploitation, or neglect of an elderly or disabled person. The repeals implement sec.1.06 of Acts 1991, 72nd Legislature, 1st Called Session, Chapter 15, as amended by Acts 1993, 73rd Legislature, Chapter 747, sec.1. 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 29, 1997. TRD-9712894 C. Ed Davis Deputy Director, Legal Services Texas Department of Protective and Regulatory Services Effective date: October 20, 1997 Proposal publication date: August 5, 1997 For further information, please call: (512) 438-3765 CHAPTER 720. Twenty-four Hour Care Licensing SUBCHAPTER A. Standards for Child-Placing Agencies 40 TAC sec.720.33, sec.720.47 The Texas Department of Protective and Regulatory Services (TDPRS) adopts amendments to sec.sec.720.33 and 720.47, concerning Standards for Child-Placing Agencies, with changes to the proposed text as published in the August 5, 1997, issue of the Texas Register (22 TexReg 7216). The justification of the amendments is to include standards that require the sharing of information between agencies when an agency home moves from one child-placing agency to another and to require agencies to maintain such information for at least five years. The amendments implement legislation passed in the 75th Legislative Session that requires agencies to obtain background information about previously verified foster families from the former agency. The legislation requires the former agency to provide the information and provides immunity from civil and criminal liability for the release of the information. During the public comment period, TDPRS received five sets of comments from individuals. One comment suggested that the time period for retention of agency home records be reduced from five to three years. Without information available at this time about the age of records that are likely to be requested, it appears prudent to retain the five-year record retention period. Two comments requested some expansion of the material in the agency home record that the rule requires to be shared. However, the legislative reference is specific about the material that must be shared and the limits of the liability protection provided. Four of the five sets received supported the proposal. The fifth set of comments consisted of questions about implementation of the rules. The department will address those questions in the appropriate format. The Advisory Committee on Child Care Administrators and Facilities considered the proposal at their September 9, 1997, meeting and recommended adoption of the rules. One advisory committee member commented in writing, suggesting that a time frame be added for a child-placing agency to respond to a request for information about an agency home. A time frame has been added in sec.720.47(h). The amendments are adopted under the Human Resource Code (HRC), Chapters 40 and 42, which describe the department's regulatory and rulemaking authority. The amendments implement HRC, Chapters 40 and 42. sec.720.33. Client Records. The child-placing agency must: (1)-(7) (No change.) (8) maintain agency home records for at least five years after an agency home is closed. sec.720.47. Foster Care Study. (a)-(d) (No change.) (e) An agency studying a foster home must request information from the foster home applicant about any previous verification of the foster home by another child-placing agency. If a foster family has been verified by another agency in the past or is currently verified by another agency and seeking to move to a new agency, the agency studying the foster home applicant must request background information about the applicant from any child-placing agency that has previously verified the home. The background information must include: (1) the home study under which the agency home was verified by a previous child- placing agency; and (2) any record of noncompliance with minimum standards under the previous child- placing agency and the resolution of any such noncompliance. (f) An agency studying a foster home previously verified by another child- placing agency must evaluate the information from the previous agency as part of the new foster care study and for making placement decisions. (g) An agency that has verified an agency home is required to release background information about the home to another agency requesting the information for the purposes of conducting a foster home study. The background information must include: (1) the home study under which the agency verified the agency home; and (2) records of any noncompliance with minimum standards by the agency home and the resolution of any such noncompliance. (h) An agency must respond to a written request from another child-placing agency within ten working days of receipt of the request. 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 29, 1997. TRD-9712895 C. Ed Davis Deputy Director, Legal Services Texas Department of Protective and Regulatory Services Effective date: November 3, 1997 Proposal publication date: August 5, 1997 For further information, please call: (512) 438-3765 CHAPTER 725. General Licensing Procedures The Texas Department of Protective and Regulatory Services (TDPRS) adopts new sec.sec.725.1001, 725.1805-725.1807, and 725.2047, and adopts amendments to sec.sec.725.1403, 725.1405, 725.1407, 725.1801, 725.2008, 725.2012, and 725.2046, concerning General Licensing Procedures, without changes to the proposed text as published in the August 5, 1997, issue of the Texas Register (22 TexReg 7217). TDPRS is also adopting new Subchapter A, Definitions. The justification for the new sections and amendments is to implement new requirements enacted by the 75th Legislature concerning TDPRS's child-care regulation function. These include listing of family homes caring for three or fewer children, checking for criminal history and central registry matches on employees of regulated child-care facilities and family homes, and providing for parental visits in all areas of licensed child-care facilities. Certain licensing actions available for use with licensed and certified facilities are made applicable to registered and listed family homes. The new sections and amendments will function by providing better protection of children. During the public comment period TDPRS received five comments from individuals. A summary of the comments and TDPRS's responses follow: Comment regarding the affidavit: One commenter stated that the affidavit's inquiry into a mental or emotional condition was in violation of the Americans with Disabilities Act (ADA). Response: The affidavit is mandated by statute. TDPRS cannot change the wording. The statute should be read to be consistent with the ADA. We believe that this statute is consistent with the ADA because it does not make a pre-employment inquiry into an emotional or mental condition. It inquiries as to whether or not an applicant has committed certain offenses which are related to the care of children, whether that offense resulted in a conviction, a resignation from employment, a revocation of a license or other activities, including arising from having been treated for or diagnosed with an emotional disease or condition. The applicant is never asked to identify himself or herself as a person with a disability. The applicant is required to indicate whether or not conditions exist which prevent the person from performing job related duties; i.e., whether those listed offenses or conduct occurred. This is allowed by the Americans with Disabilities Act. Comment regarding cost for criminal history and central registry checks: Depending on the amount and number of staff in a facility one commenter thought that this charge could cause an undue hardship. This commenter also suggested that the money collected for this service be returned to TDPRS instead of to the General Revenue Fund and that the money be used to benefit either Licensing Division activities or child care facilities. Response: Sensitive to the cost for these background checks, TDPRS will be charging an amount not to exceed the cost to TDPRS for conducting these checks as required by the Legislature. The Legislature further required that the funds collected be given to the State's General Revenue Service. Comment regarding cost of having the affidavit notarized: One commenter thought that it would be an additional cost to facilities, especially those in rural areas, to comply with the requirement that the affidavit be notarized. The commenter wanted the state to pay for this cost. Response: This requirement was placed on facilities by the Legislature and was made as an attempt to additionally protect children from persons that would be endangering to them. There are options for the facility and home in complying with the requirement. Notaries are available statewide at a minimal cost. Comment regarding first-aid training for child care staff: One commenter requested a 30 to 60 day waiting period after the staff was hired to obtain the training. Response: The rule is not a change from current day care standards/rules and there will be no additional cost to facilities. Centers now are required to have at least one person trained in first aid and CPR with each group of children. First-aid training is vital training upon which a child's life may depend and TDPRS considers the training to be too important to lessen the requirement. First-aid training is available statewide and each of the state's child care licensing offices keeps a list of qualified instructors or resources for this training. Comment regarding parental visitation: One comment was received suggesting that an exception clause be placed on the parental visitation requirement to prohibit visitation by a parent against whom a court order had been issued to restrain the parent from visitation. The commenter suggested that TDPRS make it clear that only those parents whose names were on file in the day care center could visit and remove children. Response: There are currently rules/standards in place that require this. SUBCHAPTER A. Definitions 40 TAC sec.725.1001 The new section is adopted under the Human Resources Code, Title 2, Chapter 42, which authorizes the department to administer general child-placing and child care licensing programs. The new section implements the Human Resources Code sec.sec.42.001-42.077. 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 29, 1997. TRD-9712896 C. Ed Davis Deputy Director, Legal Services Texas Department of Protective and Regulatory Services Effective date: October 20, 1997 Proposal publication date: August 5, 1997 For further information, please call: (512) 438-3765 SUBCHAPTER O. Exemptions from Licensing 40 TAC sec.sec.725.1403, 725.1405, 725.1407 The amendments are adopted under the Human Resources Code, Title 2, Chapter 42, which authorizes the department to administer general child-placing and child care licensing programs. The amendments implement the Human Resources Code sec.sec.42.001-42.077. 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 29, 1997. TRD-9712897 C. Ed Davis Deputy Director, Legal Services Texas Department of Protective and Regulatory Services Effective date: October 20, 1997 Proposal publication date: August 5, 1997 For further information, please call: (512) 438-3765 SUBCHAPTER S. Administrative Procedures 40 TAC sec.sec.725.1801, 725.1805-725.1807 The amendment and new sections are adopted under the Human Resources Code, Title 2, Chapter 42, which authorizes the department to administer general child- placing and child care licensing programs. The amendment and new sections implement the Human Resources Code sec.sec.42.001-42.077. 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 29, 1997. TRD-9712898 C. Ed Davis Deputy Director, Legal Services Texas Department of Protective and Regulatory Services Effective date: October 20, 1997 Proposal publication date: August 5, 1997 For further information, please call: (512) 438-3765 SUBCHAPTER U. Day Care Licensing Standards 40 TAC sec.sec.725.2008, 725.2012, 725.2046, 725.2047 The amendments and new section are adopted under the Human Resources Code, Title 2, Chapter 42, which authorizes the department to administer general child- placing and child care licensing programs. The amendments and new section implement the Human Resources Code sec.sec.42.001-42.077. 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 29, 1997. TRD-9712899 C. Ed Davis Deputy Director, Legal Services Texas Department of Protective and Regulatory Services Effective date: October 20, 1997 Proposal publication date: August 5, 1997 For further information, please call: (512) 438-3765 TITLE 43. TRANSPORTATION PART I. Texas Department of Transportation CHAPTER 3.Public Information SUBCHAPTER B.Access to Official Records 43 TAC sec.sec.3.11-3.14 The Texas Department of Transportation adopts amendments to sec.sec.3.11-3.14, concerning access to official records. Section 3.13 is adopted with changes to the proposed text as published in the July 8, 1997, issue of the Texas Register (22 TexReg 6419). Sections 3.11, 3.12 and 3.14 are adopted without changes and will not be republished. Transportation Code, sec.201.501 authorizes the department to furnish certified copies of records. Transportation Code, sec.502.008 prescribes methods of releasing vehicle registration information. Government Code, sec.552.230 and sec.552.262 authorizes each agency to promulgate rules of procedure for the inspection and copying of public information and to specify the charges the agency will make for copies of public records. House Bill 625, 75th Legislature, 1997, added Government Code, sec.552.127 to exempt from public disclosure information submitted by a vendor or contractor in connection with an application for certification as an historically underutilized business or disadvantaged business enterprise, except to a state or local governmental entity or with the express written permission of the applicant or the applicant's agent. House Bill 951, 75th Legislature, 1997, amended Government Code, sec.552.221 and sec.552.301 to change the time the department has to produce public information for inspection or copying, or to request an opinion as to whether information is excepted from disclosure, from 10 calendar days to 10 business days; amended Government Code, sec.552.261 to allow a requestor of public information to request a written statement of charges detailing the amount of time required to produce and provide copies of public information, and provides that the statement must be signed by the public information officer with his or her name typed or printed below the signature; and amended Government Code, sec.552.301 to define a written request for information as including electronic mail and facsimile transmission. Senate Bill 1069, 75th Legislature, 1997, added Transportation Code, Chapters 730 and 731, which authorize the department to disclose personal information contained in a record of a motor vehicle certificate of title or motor vehicle registration only for the uses permitted by those chapters and only if the requestor agrees in writing that he or she will not disseminate or publish the information on the Internet or similar network, or permit another to disseminate or publish the information in that manner. Senate Bill 1069, 75th Legislature, 1997, also amended Transportation Code, sec.550.065, limiting the type of information that may be released concerning motor vehicle accidents and the person or entity to whom such information may be released, and to require the department to adopt a written form establishing a mechanism for determining the eligibility of persons or entities for this information. The Federal Driver's Privacy Protection Act, 18 U.S.C. sec.2721, effective September 13, 1997, restricts the disclosure of information contained in vehicle registration and title records to certain individuals, agencies, or businesses. Sections 3.11-3.14 are amended to comply with the previously cited legislation. Section 3.11 is amended to establish new definitions required to implement these statutes and applicable to this subchapter. Section 3.12 is amended to include procedures for public information requests by electronic mail or facsimile transmission. This section is also amended to specify that the department will release vehicle title and registration information only as provided by law; specify that a person receiving vehicle title and registration information must agree not to disseminate or publish the information on the Internet or permit another to do so; specify that the department will release DBE or HUB applicant information only to a state or local governmental agency or with the permission of the DBE or HUB; specify that the department will not release certain motor vehicle accident information except to certain governmental agencies or to a person who provides the name of the person involved in the accident and the date or location of the accident; and establish the number of days the department has to produce information for inspection or copying or to request an opinion as to whether the information is excepted from disclosure. Section 3.13 is amended to revise charges for requested information, and provide that a statement of charges must include the amount of time required for retrieval and copying, including the signature and name of the employee providing the statement. Section 3.14 is amended to specify that a request for information will not be responded to over the Internet; and specify the terms of a written service agreement allowing electronic access to the department's vehicle title and registration database. No comments were received on the amendments. However, the chart in sec.3.13(a) has been revised to cross reference new sec.23.28, concerning distribution of Texas Highways magazine subscriber and purchaser information, which is being contemporaneously adopted. The amendments are adopted under Transportation Code, sec.201.101, which provides the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation, Government Code, sec.552.2611 which requires each agency by rule to specify the charges the agency will make for copies of public records, and Transportation Code, sec.502.008 requires release of vehicle registration information to governmental agencies. sec. 3.13. Cost of Copies of Official Records. (a) Standard costs. The following table lists charges for copies and related services. Figure 1: 43 TAC sec.3.13(a) (b) Personnel and overhead charge. A personnel charge of $15 per hour plus an overhead charge of 20% of the personnel charge will be added to the costs of any request involving the: (1) copying of more than 50 pages; or (2) retrieval and copying time of more than one hour. (c) Document inspection. If editing of confidential information is required in order to obtain access to a record for inspection, the department may charge for the cost of making copies to edit. (d) Payment. (1) Payment of charges is due prior to release of copies of records. (2) Upon release of copies of records, the department will provide to the requestor a statement describing all charges, including the amount of time required for retrieval and copying, when personnel and overhead charges are included. The statement will be signed by the employee with his or her name typed or printed below the signature. (e) Waiver. (1) The department will provide free of charge copies of records relating to an employee grievance proceeding under Chapter 2, sec.9.2 of the department's Human Resources Manual to an official party to the proceeding. (2) The department may waive or reduce the fees charged under subsections (a) and (b) of this section if the executive director or his or her designee determines waiver to be in the public interest because providing the records primarily benefits the general public. 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 29, 1997. TRD-9712926 Bob Jackson Deputy General Counsel Texas Department of Transportation Effective date: October 20, 1997 Proposal publication date: July 8, 1997 For further information, please call: (512) 463-8630 CHAPTER 23.Travel Information SUBCHAPTER A.General Provisions 43 TAC sec.23.1, sec.23.2 The Texas Department of Transportation adopts amendments to sec.23.1 and sec.23.2 concerning purpose and definitions, and new sec.23.28, concerning distribution of subscriber and purchaser information. Sections 23.1, 23.2 and 23.28 are adopted without changes to the proposed text as published in the August 12, 1997, issue of the Texas Register (22 TexReg 7479) and will not be republished. Texas Civil Statutes, Article 6144e, recognizes the spirit of House Concurrent Resolution Number 26, passed by the 64th Legislature, which named Texas Highways the official travel magazine of Texas. House Bill 2220, 75th Legislature, 1997, amended Texas Civil Statutes, Article 6144e to require that the department adopt rules establishing policies relating to the release of subscriber or purchaser information, the use by the department of Texas Highways magazine subscriber and purchaser information, and the sale of a mailing list containing the names and addresses of subscribers or purchasers. The amendments to sec.23.1 provide changes relating to the reorganization of the Travel and Information Division and reflect the recodification of transportation statutes by specifying the duties of the travel and information division, including litter reduction, highway beautification, and providing information on road conditions and Texas travel opportunities. The amendments to sec.23.2 provide definitions for terms and words used in sec.23.1 and new sec.23.28. New sec.23.28 provides that the: information will be used for reader surveys, demographic profiles, marketing subscription or product offers, and to offset costs for Texas Highways magazine; the department may sell the mailing list for one-time use in accordance with industry practice and to ensure that only updated lists are used; and mailing list rates will be published on a continuing basis and based on the department's determination of fair-market value in accordance with industry practice. It also allows a subscriber or purchaser to ask that his or her name and address be removed from mailing list sales by letter or telephone call to Texas Highways magazine in order to prevent that subscriber or purchaser from receiving unwanted, unsolicited mailings and provides that Texas Highways magazine will include instructions concerning how to request removal of names and addresses from mailing list sales in each issue. The section provides the information may be disclosed to a governmental agency if the agency certifies in writing that the information is necessary for the performance of the agency. No comments were received on the proposed amendments and new section. The amendments and new section are adopted under Transportation Code, sec.201.101, which provides the Texas Transportation Commission with the authority to promulgate rules for the conduct of the work of the Texas Department of Transportation, and Texas Civil Statutes, Article 6144e, which provides the Texas Department of Transportation with the authority to publish Texas Highways magazine. 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 29, 1997. TRD-9712927 Bob Jackson Deputy General Counsel Texas Department of Transportation Effective date: October 20, 1997 Proposal publication date: August 12, 1997 For further information, please call: (512) 463-8630 SUBCHAPTER C.Texas Highways Magazine 43 TAC sec.23.28 The amendments and new section are adopted under Transportation Code, sec.201.101, which provides the Texas Transportation Commission with the authority to promulgate rules for the conduct of the work of the Texas Department of Transportation, and Texas Civil Statutes, Article 6144e, which provides the Texas Department of Transportation with the authority to publish Texas Highways magazine. 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 29, 1997. TRD-9712928 Bob Jackson Deputy General Counsel Texas Department of Transportation Effective date: October 20, 1997 Proposal publication date: August 12, 1997 For further information, please call: (512) 463-8630