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 1. ADMINISTRATION PART V. General Services Commission CHAPTER 111.Executive Administration Division Historically Underutilized Business Certification Program 1 TAC sec.sec.111.21, 111.23 The General Services Commission adopts amendments to sec.sec.111.21 and 111.23, concerning the Historically Underutilized Business Certification Program ("HUB"). The amendments are adopted without change to the text as published in the October 10, 1997, issue of the Texas Register (22 TexReg 10083). The amendments to sec.sec.111.21 and 111.23 will ensure that the HUB rules reflect the certification and compliance review process. The amendments to sec.sec.111.21 and 111.23 will clarify how the General Services Commission administers the certification and compliance review process to determine HUB eligibility. No comments have been received regarding adoption of amendments to Sections 111.21 and 111.23. The amendments are adopted under the Texas Government Code, Title 10, Subtitle D, Chapter 2161, which provides the General Services Commission with the authority to promulgate rules consistent with the Code. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 14, 1997. TRD-9715423 Judy Ponder General Counsel General Services Commission Effective date: December 7, 1997 Proposal publication date: October 10, 1997 For further information, please call: (512) 463-3960 Cost of Copies of Public Information 1 TAC sec.111.63, sec.111.67 The General Services Commission adopts amendments to sec.111.63 and sec.111.67, relating to charges for copies of public information. The amendments are adopted without changes to the text as published in the October 10, 1997, issue of the Texas Register (22 TexReg 10084). The amendments to sec.111.63 and sec.111.67 will bring the sections into compliance with amendments to the Texas Government Code, Chapter 552, (the "Texas Open Records Act"), enacted by House Bill (H. B.) 951, 75th Legislature, Regular Session. The amendments to sec.111.63 and sec.111.67 will allow all governmental bodies ten business days instead of ten calendar days to provide access and copies of information. No comments have been received regarding adoption of amendments. The amendments are adopted under the Government Code, Chapter 552, Subchapter F, sec.552.262 (the "Texas Open Records Act") which provides the General Services Commission with the authority to promulgate rules necessary to implement the sections. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 13, 1997. TRD-9715306 Judy Ponder General Counsel General Services Commission Effective date: December 3, 1997 Proposal publication date: October 10, 1997 For further information, please call: (512) 463-3960 CHAPTER 113.Central Purchasing Division The General Services Commission adopts amendments sec.sec.113.1, 113.4, 113.8, 113.10, and 113.19, concerning purchasing, new sections sec.113.100 and sec.113.102, concerning the vendor performance and debarment program, and new section 113.125 concerning buying under contract by an agency other than the General Services Commission. The amendments and new sections are adopted without changes to the text as published in the October 10, 1997, issue of the Texas Register (22 TexReg 10085). The amendments and new sections allow for implementation of Senate Bill (S.B.) 1752 and House Bill (H.B.) 1805, 75th Leg., R.S. which streamline and enhance the efficiency of the state procurement system. The amendments and new sections will provide more access to state bidding opportunities, thus promoting lower bid prices and making the purchasing system more efficient for the use of businesses utilizing the system. No comments have been received regarding adoption of amendments to sec.sec.113.1, 113.4, 113.8, 113.10, and 113.19, new sections sec.113.100 and sec.113.102, concerning the vendor performance and debarment program, and new section sec.113.125 concerning buying under contract by an agency other than the General Services Commission. Purchasing 1 TAC 113.1, 113.4, 113.8, 113.10, 113.19 The new sections are adopted under the Texas Government Code, Title 10, Subtitle D, Section 2152.003 (Vernon 1998), which provides the General Services Commission with authority to promulgate rules consistent with the Code. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 13, 1997. TRD-9715305 Judy Ponder General Counsel General Services Commission Effective date: December 3, 1997 Proposal publication date: October 10, 1997 For further information, please call: (512) 463-3960 Vendor Performance and Debarment Program 1 TAC sec.113.100, sec.113.102 The new sections are adopted under the Texas Government Code, Title 10, Subtitle D, Section 2152.003 (Vernon 1998), which provides the General Services Commission with authority to promulgate rules consistent with the Code. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 13, 1997. TRD-9715304 Judy Ponder General Counsel General Services Commission Effective date: December 3, 1997 Proposal publication date: October 10, 1997 For further information, please call: (512) 463-3960 Buying Under Contract Established By An Agency Other Than The General Services Commission 1 TAC sec.113.125 The new section is adopted under the Texas Government Code, Title 10, Subtitle D, sec.2152.003 (Vernon 1998), which provides the General Services Commission with authority to promulgate rules consistent with the Code. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 13, 1997. TRD-9715303 Judy Ponder General Counsel General Services Commission Effective date: December 3, 1997 Proposal publication date: October 10, 1997 For further information, please call: (512) 463-3960 TITLE 4. AGRICULTURE PART I. Texas Department of Agriculture CHAPTER 7.Pesticides The Texas Department of Agriculture adopts the repeal of sec.sec.7.1-7.31 and new sec.sec.7.1-7.3, 7.10-7.14, 7.20-7.26, 7.30-7.40, 7.50-7.53, 7.60-7.62 and 7.70-7.71 (Chapter 7), concerning Pesticide Regulations, with changes to the proposed text as published in the September 5, 1997, issue of the Texas Register (22 TexReg 8781). Sections 7.11, 7.20, 7.21, 7.22, 7.24, 7.31, 7.39 and 7.53 are adopted with changes and will be republished. Sections 7.1-7.3, 7.10, 7.12-7.14, 7.23, 7.25-7.26, 7.30, 7.32- 7.38, 7.40, 7.50-7.52, 7.60-7.62 and 7.70-7.71 are adopted without changes and will not be republished. Section 7.11 has been changed to correct designations of subsection (a) and subparts (2)(A)-(D) in that section. Grammatical changes have been made to new sec.sec.7.21(at (c)(3)), 7.24 (at (r)(2) and (u)) , and 7.39 (at (g)) to correct repetitive or missing language. Subsection 7.22(f)(3) has been changed to establish that private applicator training is valid for a period of five years after completion of the training. Subsection 7.24 (t) has been changed to clarify the conditions that must be met for an applicator to receive continuing education credits for attending a continuing education activity that had not been previously approved by the department. Subsections 7.31(e)-(h) have been changed and renumbered to clarify the requirements for licensed applicators that are employed by political subdivisions or cemeteries when supervising nonlicensed employees making any pesticide application. Subsections 7.53(b) and (oo) have been changed to delete the reference to permit requirements for 2,4,5-T in Archer and Wilbarger counties, since the registration of products containing 2,4,5-T has been previously cancelled by the United States Environmental Protection Agency. Subsection 7.53(f) has been changed to update the description for the regulated portion of Brazos County, as amended by order of the Brazos County Commissioners' Court. Subsection 7.53(mm) has been changed to correct the designation of paragraph (mm)(1). Subsections 7.53(c)(1), (f)(2), (w)(2) and (cc) have been changed to correct a statutory citation. The repeal and new sections are adopted to consolidate pesticide and herbicide regulations into Chapter 7 making the regulations more user-friendly, to update citations, update terminology and clarify existing regulations, and to make the sections consistent with legislative changes enacted by the 75th Legislature. Comments generally in favor of the proposal were received from Texas Farm Bureau, Texas Agricultural Extension Service, Brazoria County Parks Department, DowElanco and The Ag-Ed Group. Numerous comments, including comments from the Texas Department of Transportation, City of McAllen and the Texas Agricultural Extension Service were received in opposition to the requirement for government employees to pay test fees and applicator license fees, and/or in opposition of the proposed fee amount for government employees. Comments were also received from the Texas Department of Transportation requesting that state agencies be exempt from paying for the licenses required for their employees. The department understands the basis of the comments, but feels that the intent of the legislature was to remove the exemption previously found in Chapter 76 of the Texas Agriculture Code that specifically allowed such exempt status. Therefore, the department has included license fees for governmental employees in it's final rule. However, after further research and discussion, it was determined that employees of state agencies and state universities who utilize a noncommercial applicator license in the course of their employment will be required to pay a $10 license fee per year, rather than the proposed $100 fee. Section 7.20(d)(2)(C) has been changed accordingly. Further, sec.7.22(d) has been changed to exempt employees of state universities and state agencies from payment of examination fees. One comment was received that recommended that the proposed category in sec.7.21 for education and research be combined with the existing demonstration and research category for clarity and ease of interpretation. The department agrees and the research and education category has been eliminated from the licensing categories found at sec.7.21(a), and references to the research and education category have also been eliminated from sec.7.20(d)(2)(C) and sec.7.22(e). One comment was received suggesting that a time period be established for defining how long the private applicator training is valid. The department agrees with the comment and amended proposed sec.7.22 to reflect that a private applicator has five years to pass the private applicator exam after completing the private applicator training, without having to retrain. Section sec.7.22(e) has also been changed to clarify licensing requirements for certain state employees and to provide for conversion of a license by a state employee who leaves state employment. Several comments were received seeking clarification to the requirements for training of nonlicensed employees working under the supervision of licensed applicators employed by political subdivisions and cemeteries. The department agrees that the proposed sec.7.31 was unclear, and amended the adopted language to more accurately define the training requirements. One comment was received that concerned the posting requirement under the federal worker protection standard and the option for posting under the prior notification regulation, found at sec.7.37. The comment indicated the possibility that the two requirements were in conflict. The department has determined that the posting requirements described in the Application of Worker Protection Standard and Prior Notification Requirement section of the regulations serve different purposes. The posting requirement for the Application of the Worker Protection Standard applies to notification of pesticide applications for employees of the agricultural establishment, while the posting requirements of the Prior Notification Requirement applies to eligible persons residing within one-quarter mile of a field on which pesticides may be applied. The posting requirement for prior notification is an option for the farm operator to use in notifying persons that have requested prior notification. The regulation was written to allow the farm operator to use the same posting sign as required by the Worker Protection Standard in order eliminate the need for a separate sign. After review of these sections, the department has determined that the two sections do not conflict and adopts the proposed regulations without changes. The repeals to sec.sec.7.1-7.31 eliminates the current Chapter 7, allowing the department to adopt new Chapter 7. New sec.sec.7.1-7.3 provide general definitions, requirements for resident agents and an expiration provision for Chapter 7. New sec.sec.7.10-7.14 provide requirements for registration of pesticides including requirements for labeling, custom blends, special local needs requests and experimental use permit requests. New sec.sec.7.20-7.25 provide licensing requirements including requirements for application for licensure, applicator certification and recertification, providing applicator business proof of financial responsibility, and expiration and renewal of licenses. New sec.7.26 adopts by reference the Texas State Plan for Certification of Pesticide Applicators, as submitted to the Environmental Protection Agency. New sec.sec.7.30-7.40 provide use and application requirements including requirements for classification of pesticides, supervision of pesticide use, maintaining records of pesticide use and distribution, storage and disposal of pesticides, registration and inspection of equipment, application of worker protection standards, prior notification of pesticide applications, use of the livestock protection collar and M-44 Sodium Cyanide, and forbidden pesticide practices. New sec.sec.7.50- 7.53 provide requirements for use of regulated herbicides including requirements for herbicide applicators and special county provisions, a listing of counties regulated and special provisions by county. New sec.sec.7.60-7.62 provides procedures for enforcement and complaint investigation. New sec.7.70 and sec.7.71 provides for penalties and establishes and specifies violations for use of a pesticide inconsistent with label directions. 4 TAC sec.sec.7.1-7.31 The repeals are adopted under the Texas Agriculture Code, Chapter 76, as amended by House Bill 1144, 75th Legislature, 1997, including sec.76.004, which provides the department with the authority to regulate the use of pesticides and provides the department with the authority to carry out the provisions of Chapter 76. 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 November 14, 1997. TRD-9715409 Dolores Alvarado Hibbs Deputy General Counsel Texas Department of Agriculture Effective date: December 4, 1997 Proposal publication date: September 5, 1997 For further information, please call: (512) 463-7541 SUBCHAPTER A.General 4 TAC sec.sec.7.1-7.3 New sec.sec.7.1-7.3 are adopted under the Texas Agriculture Code, Chapter 76, as amended by House Bill 1144, 75th Legislature, 1997, including sec.76.004, which provides the department with the authority to regulate the use of pesticides and provides the department with the authority to carry out the provisions of Chapter 76. 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 November 14, 1997. TRD-9715410 Dolores Alvarado Hibbs Deputy General Counsel Texas Department of Agriculture Effective date: December 4, 1997 Proposal publication date: September 5, 1997 For further information, please call: (512) 463-7541 SUBCHAPTER B.Registration 4 TAC sec.sec.7.10-7.14 New sec.sec.7.10-7.14 are adopted under the Texas Agriculture Code, Chapter 76, as amended by House Bill 1144, 75th Legislature, 1997, including sec.76.004, which provides the department with the authority to regulate the use of pesticides and provides the department with the authority to carry out the provisions of Chapter 76; and sec.76.044, which provides the department with the authority to set and charge a fee for each pesticide registered with the department. sec.7.11.Label Requirements. Each pesticide distributed in this state shall bear a label containing the following information related to the pesticide: (1) the label information required by FIFRA, if the pesticide is subject to registration under that law; or (2) the following information, if the pesticide is not subject to registration under FIFRA: (A) the accepted common name and/or chemical name of all active ingredients; (B) the percentage by weight of each active ingredient and the percentage by weight of all inert ingredients; (C) the name for each ingredient using the accepted common name, if there is one, followed by the chemical name; and (D) a statement of percentages except that a sliding scale method of expressing percentages shall not be used (example: active ingredient name--6.0% to 8.0%); (3) the directions for use including, but not limited to the following: (A) that it is a violation of federal and state law to use this product in a manner inconsistent with its labeling; (B) to keep out of reach of children; (C) application rates of product to be applied; (D) proper mixing procedures; (E) application methods; (F) application limitations; (G) restricted entry and preharvest intervals; and (H) clean-up, storage, and disposal instructions; (4) the net weight or measure of contents, exclusive of wrappers, or other materials: (A) the net weight or measure of contents shall be the average contents unless explicitly stated as a minimum quantity; (B) if the pesticide is a liquid, the net content statement shall be in terms of liquid measure at 68 degrees Fahrenheit (20 degrees Celsius) and shall be expressed in conventional American units of fluid ounces, pints, quarts, and gallons; (C) if the pesticide is a solid or semisolid, viscous or pressurized, or is a mixture of liquid and solid, the net content statement shall be in terms of weight expressed as avoirdupois pounds and ounces; (D) in all cases, net content shall be stated in terms of the largest suitable units (for example: "one pound, 10 ounces," not "26 ounces"); (E) in addition to the required units, specific net content may be expressed in metric units; and (F) variation above or below minimum content or around an average is permissible only to the extent that it represents deviation unavoidable in good and workman like manufacturing practice; and, (5) numbers or other symbols to identify the manufacturer's lot and batch. These shall be stamped on the pesticide container any place where they can be readily seen; provided, however, it shall be unlawful to have more than one lot or batch number in a single package. 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 November 14, 1997. TRD-9715411 Dolores Alvarado Hibbs Deputy General Counsel Texas Department of Agriculture Effective date: December 4, 1997 Proposal publication date: September 5, 1997 For further information, please call: (512) 463-7541 SUBCHAPTER C.Licensing 4 TAC sec.sec.7.20-7.26 New sec.sec.7.20-7.26 are adopted under the Texas Agriculture Code, Chapter 76, as amended by House Bill 1144, 75th Legislature, 1997, including sec.76.004, which provides the Texas Department of Agriculture with the authority to regulate the use of pesticides and adopt rules for the carrying out of provisions of Chapter 76; sec.76.073, which provides the department with the authority to fix and charge a fee for a dealer license; and, sec.sec.76.106, 76.108, and 76.112, which provide the department with the authority to fix and collect a fee for applicator testing and licensing of commercial and private applicators. sec.7.20. Application. (a) An application for a commercial, or noncommercial or private applicator license will be deemed complete when the applicator has met the applicable licensing requirements. (b) Application for pesticide dealer or applicator licenses shall be made on a form prescribed by the department. (c) The fee for a new dealer license will be prorated as outlined on the License Application form to coincide with the December 31st expiration date. Renewals made after the expiration date are subject to applicable late fees. (d) Licensing and renewal fees are: (1) Dealers: $200 for two years; (2) Applicators: (A) Commercial: $150 for one year; (B) Noncommercial: $100 for one year; (C) Noncommercial applicators employed by a state university or state agency who utilize the license in the course of their employment: $10 for one year; (D) Private: $50 for five years; (E) Certified Private: fee exempt. This certificate is no longer issued and was only available to individuals certified prior to January 10, 1989. Existing certificates may be renewed and are fee exempt. (e) Fees for a new commercial or noncommercial applicator license application submitted after September 1 of each year will be prorated to include the remaining months of the current licensing year and the following licensing year. (f) A pesticide applicator or dealer's license is not transferable. Change of ownership of an outlet or facility shall require a new application and applicable fees to be submitted. (g) The licensee shall notify the department within 30 days of any change in the information provided as part of the application for a license. Failure to provide such information may be grounds for denial, suspension or revocation of the license. (h) A commercial or noncommercial applicator in good standing may convert the license between these two categories by making application to the department and meeting the requirements for that license, including fees. sec.7.21. Applicator Certification. (a) The department may certify applicators in the following license use categories and subcategories: (1) agricultural pest control: (A) field crop pest control; (B) fruit, nut and vegetable pest control; (C) weed and brush control in pasture and rangeland; (D) predatory animal control; (E) farm storage pest control and fumigation; (F) animal pest control; (G) citrus pest control; and (H) livestock protection collar application; (2) forest pest control; (3) ornamental plant and turf pest control (except as provided in subsection (c)(2) of this section); (A) plant pest and weed control; and (B) greenhouse pest control; (4) seed treatments; (5) right-of-way pest control; (6) aquatic pest control: (A) aquatic plant and animal pest control; and (B) anti-fouling paint; (7) demonstration and research; (8) regulatory pest control; (9) aerial application; (10) chemigation; and (11) M-44 (Sodium Cyanide application in accordance with sec.7.40 of this title (relating to M-44 Sodium Cyanide - State-Limited- Use Requirements)). (b) Private Applicators. (1) Producers of agricultural commodities who complete an Extension or other department approved training program for private applicators and obtain a passing score on the private applicator test may be certified in each of the categories and subcategories listed in subsection (a)(1)(A)-(G), (2), (3), (4), (6)(A), and (10) of this section. A private applicator may be certified as an aerial applicator by obtaining a passing score on the aerial applicator category test. Private applicators will not be charged a test fee. (2) The department may allow an entity other than Extension to conduct private applicator certification training if the training program: (A) has significant educational or practical content to maintain appropriate levels of competency; (B) consists of at least three hours of net instruction time; (C) complies with all applicable federal and state laws including the Americans With Disabilities Act (ADA) requirements for access to training programs; and (D) is submitted to the department for review and is approved prior to training. (3) An approved training program may include lectures, panel discussions, organized video or film with live instruction or other activities approved by the department. (4) Private applicator certification training program content must include, but is not limited to: (A) recognition of common pests to be controlled and the damage caused by them; (B) reading and understanding laws and regulations and label and labeling information, including the common name of the pesticide to be applied, pest to be controlled, application timing and methods, safety precautions, pre-harvest or reentry provisions and any specific disposal procedures; (C) application of pesticides in accordance with label instructions and warnings, including the ability to prepare the proper pesticide concentration to be used under particular circumstances taking into account such factors as area to be covered, speed at which application equipment will be driven and the quantity dispersed in a given period; (D) recognition of local environmental situations that must be considered during application to avoid contamination; (E) recognition of poisoning symptoms and procedures to be followed in case of a pesticide related accident; and (F) recognition and identification of Integrated Pest Management (IPM) strategies applicable to the agricultural operation. (5) The department may deny, revoke, or refuse to renew approval for any or all private applicator training programs or sponsors if the sponsor fails to provide to the department, upon request, records of training; fails to provide the quality of training approved by the department; or fails to comply with any other requirements that are a basis for approval or that are a part of these rules. (6) The department may request prior notification of any scheduled training programs to be offered by the sponsor. (7) Each training program must be approved by the department. No activity may claim to be approved or accepted by the department or use any other such term that would lead a person to believe that it has been approved by the department unless it is so approved. (8) Each training program shall be approved for one calendar year only. (9) Department personnel may monitor all approved private applicator training programs, and all fees charged by the sponsor shall be waived for department personnel who monitor the training program. (10) Upon completion of private applicator training, the sponsor shall direct trainee(s) to the department for testing. (11) In order for a private applicator training course to be approved by the department, the sponsor must: (A) submit a completed department-prepared application form; (B) provide any additional material relevant to the activity which is requested by the department; and (C) submit the application and information required by the department at least 30 days in advance of the first date of the activity. The department may waive the 30-day provision providing all other requirements are met. The department will respond to the sponsor within ten days of receipt of the application and approve, reject, or request additional information. (12) Sponsors who wish to continue course approval must file for renewal annually on a form prepared by the department. (c) Commercial and Noncommercial Applicators. (1) Commercial and noncommercial applicators certified in category (a)(7)-(10) of this section must also be certified in one or more categories from category (a)(1)-(6) of this section prior to performing regulatory pest control or research and demonstration pest control. (2) The department will certify a commercial applicator in the ornamental plant and turf pest control category only if the person is also a nurseryman or if the applicator restricts application only to ornamental and turf plants at the production site. (3) A person exempted from licensing requirements pursuant to the Structural Pest Control Act (Vernon's Texas Civil Statutes, Article 135b-6), Section 11 (2) and (6) must be licensed with the department regardless of the use classification of the pesticide. sec.7.22. Licensing of Applicators. (a) All testing conducted by the department under the authority of the Act, Subchapter E, shall be designed to cover the information necessary for an applicant to demonstrate competency to use and supervise the use of restricted- use and state-limited- use pesticides or regulated herbicides in a safe and effective manner. (b) The department may enter into a memorandum of agreement with another state or a federal agency for reciprocity in licensing pesticide applicators. (c) Doctors of veterinary medicine are exempted from licensing when: (1) applying restricted-use or state-limited-use pesticides or regulated herbicides as drugs or medication during the course of normal practice; or (2) when applying any pesticides not classified as restricted-use by EPA to property owned, rented or under the veterinarian's general control. (d) Commercial and noncommercial applicators must meet the following requirements: (1) Anyone who makes a passing score on the general pesticide applicator examination, the laws and regulations examination, and on one or more category tests will be eligible to be certified in those categories or subcategories for which a passing score was received and shall be licensed as soon as all other licensing requirements are met. Applicators may certify in the subcategory listed in sec.7.21 (a)(6)(B) of this title (relating to Applicator Certification) by passing a test pertaining to that subcategory and related laws and regulations and fulfilling other licensing requirements; however, applicators who license in this manner may not add other categories without successfully completing the general pesticide applicator examination and the laws and regulations examination. (2) A fee of $20 shall be required for testing each applicant in each license use category and subcategory, and must be paid at the time the test or tests are given. Political subdivision employees may submit a purchase order number in lieu of payment at time of the examination. Employees of state universities and state agencies are exempt from examination fees. (3) Individual test scores are valid for only 12 months. (e) Employees of state universities and state agencies may convert to a commercial or noncommercial license upon termination of employment by paying the required fee provided that all licensing requirements have been satisfied. (f) Private applicators must meet the following requirements: (1) A private applicator certification or license may be revoked by the department if the applicator is not engaged in the production of an agricultural commodity. (2) An employee who qualifies as a private applicator under the Act, Section 76.112(c), is not considered to be providing equipment or pesticide when the employer is identified on the private applicator's certification license application or amendment thereof, and either: (A) the pesticide or equipment is purchased by the private applicator using a check, cash, or account of the employer; or (B) the private applicator is reimbursed by the employer for the equipment or pesticide. (3) Upon completion of the private applicator training, the trainee has 5 years to pass the private applicator examination without having to retrain. Retraining and retesting shall be required of anyone who does not complete requirements for licensing within 5 years of passing the private applicator exam. sec.7.24. Applicator Recertification. (a) All applicators must meet recertification requirements through completion of approved continuing education activities. (b) Approved activities may include lectures, panel discussions, organized video or film with live instruction, field demonstrations, or other activities approved by the department. (c) Each activity must be approved by the department. No activity may claim to be approved or accepted by the department or use any other such term that would lead an applicator to believe that it has been approved by the department for recertification unless it is so approved. (d) The department shall assign no more than one continuing education unit (CEU) for each hour of net actual instruction time presented at an approved activity. (e) To be eligible for approval, the department will require: (1) that the activity have significant educational or practical content to maintain appropriate levels of competency; (2) that the activity be conducted by a university, a governmental agency, an association, or a private independent nonapplicator business; (3) that each activity has a recordkeeping procedure for verifying applicator attendance using department forms or approved formats; (4) that activities cover one or more of the following topics pertaining to pesticides: (A) label and labeling comprehension; (B) safety factors; (C) environmental consequences; (D) pest features; (E) integrated pest management strategies/pest management practices; (F) pesticide factors; (G) equipment characteristics; (H) application techniques/drift minimization; (I) laws and regulations; (J) biotechnology/transgenic crops; or (K) business ethics; and (5) the activity is able to comply with all applicable federal and state laws, including the Americans With Disabilities Act (ADA) requirements for access to activities. (f) Prior approval shall not be required for applicator recertification courses of up to three CEUs conducted by Extension faculty or department personnel for any pesticide applicator, provided that all other requirements for course content and records are met. The department may enter into a memorandum of agreement with Extension regarding the specific requirements for applicator recertification. (g) Department personnel may monitor all approved activities, and all fees charged by the sponsor shall be waived for department personnel who monitor the recertification activity. (h) The department may deny, revoke, or refuse to renew approval for any or all courses of a sponsor if the sponsor fails to file a timely activity report, fails to provide the quality of activity approved by the department, or fails to comply with any other requirements that are a basis for approval or that are a part of these rules. (i) The department may enter into a memorandum of agreement with another state or non-profit professional society or association to recognize the state's pesticide applicator recertification or the society's professional recertification for satisfaction of the requirements of this section for commercial, noncommercial and private applicator recertification only if: (1) the standards for recertification meet or exceed the standards for the one- year or five-year recertification periods as set out in this section; and (2) the agreement reduces duplication of effort and does not increase the recordkeeping burden of the department. (j) Each continuing education activity shall be approved for one calendar year only. (k) In order for a recertification activity to be approved by the department, the sponsor must: (1) submit a completed department-prepared application form; (2) provide any additional material relevant to the activity which is requested by the department; and (3) submit the application and information required by the department at least 30 days in advance of the first date of the activity. The department may waive the 30-day provision providing all other requirements are met. The department will respond to the sponsor within ten days of receipt of the application and approve, reject, or request additional information. (l) Sponsors who wish to continue approval must file for renewal annually on a form prepared by the department. (m) Sponsors of approved activities shall: (1) prepare a roster of applicators that attend the activity which contains, at a minimum, the pesticide applicator's name and current license or certificate number; (2) distribute a completion certificate at the time of the activity to applicators who successfully complete an activity, which shall indicate the name of the sponsor, the date, county and name of the activity, the amount and type of credit earned, and the assigned course number; (3) send the activity rosters to the department within 14 days after the end of an activity. The rosters must be on department forms or approved formats; and (4) ensure that CEUs awarded correspond proportionately to the net instruction time. (n) Governmental agencies may enter into an agreement with the department for annual submission of recertification records of agency employees attending a recertification program approved for the agency by the department. (o) No credit will be given for time used to promote the sponsor or other activities of the sponsor or for time used for organizational, political, procedural, or other nonrelevant activities. (p) Applicators will recertify through a self-certification program. Each applicator will be required to maintain proof of the number of CEUs necessary to renew a license or certificate. Certificates of completion verifying attendance at approved activities during the previous licensing period must be maintained for a period of 12 months after the most recent renewal of their license or certificate. (q) Each commercial or noncommercial applicator must obtain at least five CEUs during the 12 months preceding December 31 in order to recertify and renew a license for the following year. A minimum of one hour each must be obtained from two of the following categories: integrated pest management, laws and regulations or drift minimization. An applicator who becomes unlicensed in any licensing year may not be relicensed for 12 months unless all CEUs required for the last year of licensing are completed. Until the 12 month period has elapsed, applicators are prohibited from retesting under sec.7.22 of this title (relating to Licensing of Applicators). (r) Private applicators must recertify as follows: (1) Each licensed private applicator must obtain 15 CEUs within a five year period including at least two credits in laws and regulations and two credits in integrated pest management, except that any five-year period that began prior to January 1, 1996, may be satisfied by obtaining two credits in laws and regulations and one credit in integrated pest management. (2) Each licensed private applicator must obtain 15 CEUs prior to the last day of February of the year their license expires. (3) Private applicators issued a certificate prior to January 10, 1989, may fulfill their recertification requirement on a one-time only basis by completing the Extension private applicator training program, attaining a passing score on the private applicator test, and obtaining a private applicator license. Certified private applicators who choose not to license but wish to maintain certification under a certificate issued prior to January 10, 1989, will be required to recertify as specified for licensed private applicators in this subsection. (4) Private applicators have the option of forgoing continuing education requirements for a recertification period by following these procedures: (A) Take and pass a comprehensive examination administered by the department which will contain questions relevant to those topics which would be covered at various continuing education activities. A certificate of completion worth 15 CEUs will be issued by the department upon a passing score being attained by the applicator. (B) If the applicator fails the examination, subsequent attempts will be allowed until a passing score is attained. If a passing score is not attained, the applicator may obtain the required CEUs pursuant to this subsection. (C) Pay a required fee of $50 for each examination. (s) Failure to comply with the continuing education requirement for commercial, noncommercial and private applicators will: (1) result in nonrenewal of an applicator's license or certification until the necessary credits for continuing education are attained; (2) prohibit applicators from retesting for a new license in lieu of meeting recertification requirements until one year after the expiration of their license; (3) require the applicator to take and pass comprehensive department examinations for general knowledge and for each category in which the applicator seeks to be licensed if the applicator does not recertify and renew in one year following the expiration of the license; (4) require retraining of commercial, noncommercial and private applicators for categories or subcategories requiring special training if the applicator does not recertify and renew in one year following the expiration of the license; and (5) subject a noncompliant applicator to administrative, civil or criminal penalties and/or license or certificate revocation, suspension, modification or probation for failure to comply with continuing education requirements if the applicator operates under a license that has not been renewed. (t) An applicator may seek credit for a continuing education activity that has not been submitted by the sponsor to the department, and the department will assign the number of credits for the activity. To be eligible for accreditation, the following conditions must be met: (1) the activity must contain course content of the highest standards; (2) the activity must be sponsored by an in-state or out-of-state institution of higher education, or an out-of-state regional or national association, or the state or federal government; (3) the activity must be in an area directly related to the activities of a commercial, noncommercial or private applicator; (4) the applicator shall provide the department with sufficient information describing activity content including the time allotted to each aspect of the activity, identification of sponsor, instructor's name and address, proof of attendance, date, time, and place of the activity; and (5) the information for the desired credit must be submitted within 60 days after completion of the activity. (u) An applicator may file a written request for an extension of time for compliance with any deadline in these rules. Such request for extension may be granted by the department if the applicator files appropriate documentation to show good cause for failure to comply timely with the requirements of this subsection. Good cause means extended illness, extended medical disability, or other extraordinary hardship which is beyond the control of the person seeking the extension. (v) Any person who is issued an initial license on or after September 1 in any year and has not been licensed at any time during the preceeding nine months, shall begin annual recertification requirements the following year and need not obtain any credits between September 1 and December 31 of that year. If credits are obtained during that period, they may be applied to the following year's requirement. (w) Applicators licensed as both private and commercial or noncommercial may satisfy requirements for private applicator recertification by meeting the recertification requirements for commercial and noncommercial applicators. 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 November 14, 1997. TRD-9715412 Dolores Alvarado Hibbs Deputy General Counsel Texas Department of Agriculture Effective date: December 4, 1997 Proposal publication date: September 5, 1997 For further information, please call: (512) 463-7541 SUBCHAPTER D.Use and Application 4 TAC sec.sec.7.30-7.40 New sec.sec.7.30-7.40 are adopted under the Texas Agriculture Code, Chapter 76, as amended by House Bill 1144, 75th Legislature, 1997, including sec.76.004, which provides the department with the authority to regulate the use of pesticides and provides the department with the authority to carry out the provisions of Chapter 76; and Chapter 76, Subchapter G, which provides the department with the authority to adopt rules for the regulation of herbicide use. sec.7.31. Supervision. (a) If there is a discrepancy between supervision requirements contained in federal laws or regulations, state laws or regulations, or the pesticide label, the supervision requirement that requires the greatest degree of direct supervision by the licensed applicator shall apply. Licensed applicators may only supervise application of pesticides for categories or subcategories in which they are certified. (b) A person may not supervise the use of a restricted-use or state-limited-use pesticide or regulated herbicide unless the person is licensed as a commercial, non-commercial or private applicator with the department. A certified private applicator may not supervise the use of restricted-use or state-limited-use pesticides or regulated herbicides. A licensed applicator may not supervise an applicator whose license or certificate is under revocation or suspension. (c) A business that applies a restricted-use or state-limited-use pesticide or regulated herbicide to the land of another for hire must be operated by or employ a licensed commercial applicator. An application of a restricted-use or state-limited-use pesticide or regulated herbicide can only be made by the licensed applicator or by persons under the licensee's direct supervision. (d) A licensed applicator is not required to be physically present at the time and place of a pesticide application to exercise direct supervision of application of a restricted-use or state-limited-use pesticide or regulated herbicide unless the label of the applied pesticide states that the presence of the licensed applicator is required. The licensed applicator must always be available when and if needed and is responsible for any actions of a person working under the licensee's direct supervision. (e) Except as provided in subsection (f) of this section, each licensed applicator is responsible for assuring that any person working under the licensee's direct supervision is knowledgeable of the label requirements and rules and regulations governing the use of the particular pesticide being used by the individual. Working includes transporting a restricted-use or state- limited- use pesticide or regulated herbicide in any type of distributing or transporting equipment ready for application; mixing, storing and handling in packages or containers that have been opened; and applying and disposing of restricted-use or state-limited-use pesticides or regulated herbicides and cleaning equipment used to apply the pesticide. At a minimum, instructions shall include a review of appropriate sections of the Texas pesticide law and the Texas pesticide regulations, and reading of complete labeling information for the particular use of the pesticide product being applied. To ensure that appropriate instructions have been given to a nonlicensed person, the licensed applicator must verify or provide handler training to the nonlicensed applicator in accordance with the requirements of WPS. Licensed applicators supervising individuals applying products not under the scope of WPS must review the label with the individual and have the individual sign and date the label or complete a form prescribed by the department. (f) Licensed applicators employed by political subdivisions or cemeteries who supervise nonlicensed employees that make any pesticide application are responsible for assuring that the following requirements are met: (1) On an annual basis and prior to the nonlicensed employee making their first application, the non licensed employee must be trained in the specific use of the pesticide applied. The training requirement may be satisfied by either: (A) the nonlicensed employee obtaining 5 CEUs in accordance with the continuing education required for licensed commercial and noncommercial applicators pursuant to sec.7.24 of this title (relating to Applicator Recertification); or (B) the nonlicensed employee is trained on the appropriate laws and regulations pertaining to pesticide use, the label information for the use of all pesticides that are applied and pesticide safety training. (2) A record of training received or CEUs obtained by the nonlicensed employee must be maintained for a period of two years and shall be made available to the department for inspection upon request. The record may be either a certificate of completion of training or CEUs obtained or on a form prescribed by the department. sec.7.39. Sodium Fluoroacetate (Compound 1080) Livestock Protection Collar (LPC)--State-Limited-Use Requirements. (a) Any and all pesticides and devices using the active ingredient sodium fluoroacetate for livestock predation control shall be classified as state- limited-use, pursuant to the Act, sec.76.003. (b) In addition to the definitions set out in the Act, sec.76.001, and sec.7.1 of this title (relating to Definitions), the following terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) LPC applicator-A person who has obtained a license from the department as a private, commercial or noncommercial applicator or who has obtained a private applicator certificate and has fulfilled the requirements for livestock protection collar certification as set forth in this section. Private applicators may certify to use the livestock protection collar on property owned, leased, or rented by the person or the person's employer or under the person's general control. Employees of government agencies who apply collars in administration of official duties or persons that apply collars on their own or employer's property may obtain a livestock protection collar certification under a noncommercial license. Persons operating a business or employed by a business to apply livestock protection collars on the property of another for hire must obtain livestock protection collar certification under a commercial applicator license. (2) Livestock protection collar (LPC)-A collar-like device which has been filled with the active ingredient sodium fluoroacetate (Compound 1080) to control predation. (3) Registrant agent-A representative of a registrant. Each registrant agent must be a licensed pesticide dealer, a licensed private, commercial or noncommercial applicator certified in the livestock protection collar subcategory, and approved by the department to distribute livestock protection collars to approved LPC applicators. (4) Collar pool agent-A person designated by the department to operate a livestock protection collar pool. Each collar pool agent must be a licensed pesticide dealer or county extension agent, a certified private applicator certified in the livestock protection collar subcategory, or a licensed private, commercial, or noncommercial applicator certified in the livestock protection collar subcategory and approved by the department to distribute livestock protection collars to approved LPC applicators. (c) Distribution requirements. Registrants, registrant agents and collar pool agents distributing livestock protection collars must meet the following requirements. (1) Each registrant must obtain a license under the Act, sec.76.071, and comply with the provisions of sec.7.20 of this title (relating to Application). (2) Each registrant and registrant agent who distributes livestock protection collars must obtain a license as a private, commercial or noncommercial applicator with certification in the livestock protection collar subcategory and a pesticide dealer license. Each collar pool agent who distributes livestock protection collars must possess a private applicator certification and obtain certification in the livestock protection collar subcategory or obtain a license as a private, commercial, or noncommercial applicator with certification in the livestock protection collar subcategory and, except for county extension agents, a pesticide dealer license. Collars shall be distributed only by registrants or agents and only to certified livestock protection collar applicators. (3) Livestock protection collars may not be distributed by registrants or agents to persons other than registrants or agents for the purpose of resale. (4) Each registrant may designate registrant agents and shall file with the department written notice of the name, home address, address of distribution site, and telephone number of each agent. The registrant shall notify the department of any change in this information within ten days. The department shall notify the registrant in writing if the agent is approved or disapproved. (5) Each livestock protection collar shall have a unique serial number clearly and firmly affixed to it. (6) Registrants and agents shall dispose of livestock protection collars strictly in accordance with label directions. (7) Registrants and agents shall distribute the forms prescribed by the department for use by LPC applicators with each distribution of livestock protection collars. (8) Registrants and agents shall report to the department any incident or complaints of misuse involving a livestock protection collar. (d) In order to be certified as an LPC applicator, the following criteria must be met. (1) A person may obtain certification as either a private, commercial or noncommercial applicator by completing the livestock protection collar training, passing a test prescribed by the department and fulfilling the licensing requirements of the desired license type. (2) In order to obtain certification as a licensed commercial LPC applicator, a person shall comply with the licensing requirements of sec.7.22 and sec.7.23 of this section (relating to Licensing of Applicators and Applicator Businesses Proof of Financial Responsibility), complete livestock protection collar training, pass a test prescribed by the department, and pay the fee prescribed by sec.7.20 of this section (relating to Application). The license expiration and renewal requirements of sec.7.25 of this title (relating to Expiration and Renewal of Licenses), apply to commercial LPC applicators. (3) In order to obtain certification as a licensed noncommercial LPC applicator, a person shall comply with the licensing requirements of sec.7.22 of this title (relating to Licensing of Applicators), shall complete livestock protection collar training, pass a test prescribed by the department, and pay the fee prescribed by sec.7.22 of this title (relating to Licensing of Applicators); (4) In order to obtain certification as a private LPC applicator, a person must possess a valid private applicator certificate or obtain a private applicator license in accordance with sec.7.22 of this title (relating to Licensing of Applicators) and complete the livestock protection collar training program and pass a test prescribed by the department. No testing fee will be collected from private applicators. (5) All LPC applicators must recertify as required by sec.7.24 of this title (relating to Applicator Recertification). Each LPC applicator is responsible for giving written notice to the department of any change of address. Retraining and retesting may be required by the department for any LPC applicator who fails to comply with the use, recordkeeping, or other requirements of the department. (e) LPC applicators must undergo training, including training in the following areas: (1) the proper use of the livestock protection collar; (2) the proper method of disposing of collars and contaminated materials; (3) health and safety hazards, safe handling techniques, and emergency treatment in cases of accidental exposure; (4) recordkeeping and reporting requirements; (5) proper methods of identifying causes of predation; and (6) approved methods of predator management. (f) All LPC applicators shall comply with the label, including the use restrictions, when using the livestock protection collar. Copies of the label and applicator record forms shall be obtained with the purchase or transfer of any collar from a registrant or agent. Additional copies of the label and forms may be obtained from the department. (g) Each registrant shall maintain records for the registrant and all registrant agents on forms prescribed by the department for at least two years which include: (1) an inventory of Compound 1080 and an inventory of livestock protection collars including the serial number, size, type of straps, number of straps, and configuration for each collar. An annual production report shall be filed on forms prescribed by the department by each registrant by January 31 for the previous calendar year reporting on the number and type of livestock protection collars produced and distributed and on the quantity of Compound 1080 purchased and used; (2) information on all distributions to applicators or agents, including: (A) the date of distribution; (B) the name, telephone number, address, and applicator license number of each LPC applicator who purchased or received a collar; (C) the number of livestock protection collars distributed; and (D) the serial number of each collar. (3) A record of all distributions of collars by a registrant or agent shall be submitted to the department monthly. A report is not required for months in which a distribution does not occur. (4) Each collar pool agent shall notify the department monthly of all distributions of collars and shall maintain records for at least two years, including: (A) the date of distribution or receipt of collars; (B) the name, telephone number, address, and applicator license number of each LPC applicator who purchased, transferred, or received a collar; (C) the number of livestock protection collars distributed; (D) the serial number of each collar; and (E) the names and addresses of collar pool members. (5) Each LPC applicator shall maintain records on the use of the collar on forms prescribed by the department. The records shall include: (A) the serial number of the collar attached to livestock; (B) the pasture(s) where collared livestock were placed; (C) the dates of each attachment, inspection, and removal; (D) the number and locations of livestock found with ruptured or punctured collars and the apparent cause of the damage; (E) the number, dates, and approximate location of collars lost; (F) the species, locations, and dates of all animals suspected to have been killed by collars; (G) all suspected poisonings of humans, domestic animals or nontarget wild animals resulting from collar use and all other accidents involving the release of Compound 1080; and (H) number of collars in storage. (6) Each LPC applicator shall maintain a copy of collar use records for at least two years. (7) Each registrant, agent, or LPC applicator shall report accidents involving any suspected or actual poisoning of threatened or endangered species, humans, domestic animals or nontarget wild animals to the department immediately (within one working day) by telephone. (h) Instructions to noncertified applicators working under the supervision of a licensed LPC applicator. The licensed LPC applicator shall give appropriate verifiable instructions on the use of the collar to a noncertified person as required by sec.7.31 of this title (relating to Supervision) before the noncertified person may handle the collar. Licensed commercial LPC applicators must be physically present to supervise use of collars by noncertified applicators. Certified private applicators authorized to apply collars may not supervise any person using collars. 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 November 14, 1997. TRD-9715413 Dolores Alvarado Hibbs Deputy General Counsel Texas Department of Agriculture Effective date: December 4, 1997 Proposal publication date: September 5, 1997 For further information, please call: (512) 463-7541 SUBCHAPTER E.Regulated Herbicides 4 TAC sec.sec.7.50-7.53 New sec.sec.7.50-7.53 are adopted under the Texas Agriculture Code, Chapter 76, as amended by House Bill 1144, 75th Legislature, 1997, including sec.76.004, which provides the department with the authority to regulate the use of pesticides and provides the department with the authority to carry out the provisions of Chapter 76; and Chapter 76, Subchapter G, which provides the department with the authority to adopt rules for the regulation of herbicide use. sec.7.53.County Special Provisions. (a) Aransas. No permit is required for spraying regulated herbicides during the months of January and February. (b) Archer. (1) No permit is required for the application of regulated herbicides during the period of September 16th to May 9th of the following year. (2) The application of the following regulated herbicides is prohibited during the regulated period beginning May 10th and ending September 15th of each year: (A) the ester formulations of 2,4-dichlorophenoxyacetic acid (2,4- D); and (B) 2-methyl-4-chlorophenoxyacetic acid (MCPA). (3) The aerial application of polychlorinated benzoic acids and 2,4-D amine is prohibited during the regulated period except during the period beginning May 10th and ending May 20th of each year. Ground applications of polychlorinated benzoic acids and 2,4,-D amine may be made during the regulated period with the requirement of a permit. (c) Austin. (1) Only that portion of Austin County lying east and south of the line beginning at the point where State Highway 36 crosses the north county line, thence southerly along Highway 36 to FM 949; thence westwardly along FM 949 to the San Bernard River is regulated by the Act, Subchapter G and regulations adopted thereunder. (2) Between March 15th and July 31st, in that portion of Austin County lying south of Interstate Highway 10, the following restrictions on the use of 2,4-D formulations shall apply: (A) the application by aircraft is prohibited; (B) the use of all ester formulations by any method is prohibited. (d) Bailey. (1) For the period beginning on October 1 of one calendar year through May 1 of the following calendar year, no permit will be required for the use of the regulated herbicides in that part of Bailey County defined by the following landmarks: south of Highway 746 from Texas/New Mexico state line extending east to Highway 214; then south on Highway 214 to the intersection of Highway 214 and Highway 746; then proceeding east on Highway 746 to the Bailey/Lamb County Line. (2) Aerial application of regulated herbicides is prohibited in the area described in this subsection during the regulated period. (3) For the period beginning on October 1 of one calendar year through April 15 of the following calendar year, no permit will be required for the use of regulated herbicides in that part of Bailey County defined by the following landmarks: north of 746 from Texas/New Mexico state line extending east to Highway 214, then south on Highway 214 to the intersection of Highway 214 and Highway 746; then proceeding east on Highway 746 to the Bailey/Lamb County line. (4) Except as provided in these subsections, the aerial application of regulated herbicides is prohibited except that the aerial application of dicamba is allowed in the area described in this subsection during the regulated period. The aerial application of regulated herbicides may be used during the regulated periods provided the user obtains a permit from the department prior to use. (e) Brazoria. (1) For that portion of Brazoria County both north of State Highway 35 and west of Highway 288, the aerial application of all formulations of 2,4-D is prohibited between March 10 and September 15 of each year. (2) In no case shall 2,4-D be used to treat any area that is nearer than two miles to any susceptible crop. (3) For that portion of Brazoria County not included in paragraph (1) of this subsection, the aerial application of regulated herbicides is prohibited between March 25th and August 1st of each year. (4) The use of high volatile herbicides is prohibited. (5) Brazoria, Calhoun, Fort Bend, Jackson, Matagorda, and Wharton Counties, for purposes of this subsection, are considered as one unit, and paragraphs (1) and (3) of this subsection are not to be changed without a public hearing for the unit as a whole. (f) Brazos. That portion of Brazos County lying east of the Brazos River and west of the following described line shall be regulated by the Act, Subchapter G and regulations adopted thereunder. The eastern boundary of the regulated area is as follows: (1) beginning at the intersection of State Highway No. 6 and Old San Antonio Road (OSR), which point is on the north boundary line of Brazos County; thence in a southerly direction along OSR to its intersection with Fountain Switch Road (County Road 315); thence in a northeasterly direction to its intersection with Luza Lane (County Road 308); thence in an easterly direction along Luza Lane to its intersection with State Highway 21; thence easterly along State Highway 21 to its intersection with State Highway 47; thence easterly along State Highway 47 to its intersection with FM 60 (Raymond Stotzer Parkway); thence north along FM 60 to its intersection with FM 2818; thence southeasterly along FM 2818 to its intersection with North Dowling Road; thence southwesterly along North Dowling Road to its intersection with North Graham Road; thence northeasterly along North Graham Road to its intersection with South Dowling Road; thence southeasterly along South Dowling Road to its intersection with FM 2154 (Wellborn Road); thence southeasterly along FM 2154 to its intersection with State Highway 6; thence southeast along State Highway 6 to its intersection with the Navasota River, which is the southern boundary of Brazos County. (2) that portion of Brazos County lying east of the line described in paragraph (1) of this subsection shall be exempt from the Act, Subchapter G and regulations adopted thereunder. (g) Briscoe. (1) The aerial application of regulated herbicides shall be prohibited from May 1 through September 1 of each year in that portion of Briscoe County that lies above the Caprock Escarpment, such area to be designated as Zone 1. (2) The aerial application of regulated herbicides will be allowed in Zone 1 between September 2 and October 1 of each year with the requirement of a permit. (3) The aerial application of regulated herbicides shall be prohibited from May 1 through October 1 of each year in that portion of Briscoe County that lies below the Caprock Escarpment, such area to be designated as Zone 2. (4) Only 2,4-D amine and dicamba may be applied by ground applications with the requirement of a permit. (5) No permit is required for the application of regulated herbicides from October 2 through April 30 of the following year. (h) Burleson. (1) The application of regulated herbicides by aircraft is prohibited. In no case shall regulated herbicides be used to treat any area that is nearer than two miles to any susceptible crops. (2) Between April 1 and September 15 of each year, the following restrictions on the use of 2,4-D formulations shall apply. (A) Only amine formulations may be used with a boom-type sprayer for ground applications in that area beginning at Milam County line; thence south along FM Road 1362 to FM Road 166; thence east to FM Road 2039; thence south to FM 60; thence west on FM 60 to Davidson Creek; thence south along Davidson Creek to Washington County line to Brazos River; thence north along Brazos County line to Milam County line, the place of the beginning. (B) Cluster nozzles are prohibited in the area designated in subparagraph (A) of this subsection. (i) Calhoun. (1) The aerial application of all formulations of 2,4-D is prohibited between March 10 and September 15 of each year. (2) No permit is required for spraying regulated herbicides during the months of January and February of each year. (3) Brazoria, Calhoun, Fort Bend, Jackson, Matagorda and Wharton Counties, for purposes of this subsection, are considered as one unit and paragraph (1) of this subsection is not to be changed without a public hearing for the unit as a whole. (j) Cochran. (1) The use of 2,4-D ester is prohibited for the period beginning April 25 and ending October 15 of each year. (2) The aerial application of all regulated herbicides is prohibited for the period beginning April 25 and ending October 15 of each year. (3) A permit for application of all regulated herbicides is required for the period beginning January 1 and ending on December 31 of each year. (k) Collingsworth. (1) The aerial application of regulated herbicides is allowed with the requirement of a permit between the dates of November 1 of one calendar year and April 15 of the following calendar year. (2) Ground and aerial applications of regulated herbicides will be allowed with the requirement of a permit throughout the year in the northeast part of the county, identified with physical boundaries north of the Salt Fork of the Red River and east of U.S. Highway 83. (3) Ground applications of 2,4-D amine will be allowed with the requirement for a permit throughout the county between the dates of April 16 and October 30 of each year. (l) Dawson. (1) No permit is required for the application of the regulated herbicides during the period from October 1 to April 15 of the following year. (2) All ester formulations and/or other high volatile formulations of 2,4-D shall be prohibited. (3) A permit is required for the ground application of 2,4-D amine and dicamba during the regulated period from April 16 through September 30 of each year. (4) The aerial application of dicamba only is allowed with the requirement of a permit during the regulated period from April 16 through September 30 of each year. (m) Deaf Smith. The use of all butyl ester formulations of 2,4-D and/or all high volatile formulations of 2,4-D is prohibited between April 15 and October 1 of each year. (n) Delta. The aerial application of regulated herbicides is prohibited between April 15 and September 1 of each year. (o) Dickens. (1) No permit is required for the application of regulated herbicides during the period beginning September 1 and ending May 15 of the following year. (2) The application of all regulated herbicides, with the exception of dicamba, is prohibited during the period beginning June 11 and ending August 31 of each year. (3) This subsection applies only to that portion of Dickens County that lies below the Caprock Escarpment. (p) Dimmit. (1) Only that portion of Dimmit County within the area beginning at the intersection of the center line of U.S. Highway 83 and the Dimmit-Zavala County line; thence in a southerly direction following the center line of U.S. Highway 83, through Carrizo Springs, and Asherton, to its intersection with FM Road 190 East; thence in a northeasterly direction following the center line of FM Road 190 to its intersection with State Highway 85; thence in an easterly direction following the center line of State Highway 85 to its intersection with FM Road 65; thence following the center line of FM Road 65 to its intersection with the Dimmit- Zavala County line; thence in a westerly direction following the Dimmit- Zavala County line to the place of beginning is regulated by the Act, Subchapter G and regulations adopted thereunder. (2) Aerial application of regulated herbicides in the regulated portion of Dimmit County is prohibited. (q) Foard. That portion of Foard County within the area described as follows is regulated by the provisions of the Act, Subchapter G and regulations adopted thereunder, for the period beginning May 25 and ending October 10 of each year: all of that portion of Foard County lying east of a line which has its origin beginning at a point where the Pease River intersects the east boundary line of Section 509, Block A, H.&T.C.RR.C, survey, thence continuing southerly along the adjoining section lines ending at a point of intersection with the 345 KV transmission electric power lines, then, all of the portion of Foard County lying north of a line along the 345 KV transmission electric power lines extending easterly to the Wilbarger County line. (r) Fort Bend. (1) The aerial application of all formulations of 2,4-D is prohibited between March 10 and September 15 of each year. (2) The application of high volatile herbicides is prohibited. (3) In no case shall 2,4-D be used to treat any area that is nearer than two miles to any susceptible crop. (4) Brazoria, Calhoun, Fort Bend, Jackson, Matagorda, and Wharton Counties, for purposes of this subsection, are considered one unit, and paragraph (1) of this subsection is not to be changed without a public hearing for the unit as a whole. (s) Gaines. (1) The application of all regulated herbicides is allowed without the requirement of a permit between the dates of October 1 and March 31 of the following year. (2) A permit is required for the application of the regulated herbicides between the dates of April 1 to September 30 of each year. (t) Hall. The application of regulated herbicides is prohibited between May 15 and October 15 of each year. (u) Harris. (1) The use of high volatile herbicides is prohibited. (2) In no case shall 2,4-D be used to treat any area that is nearer than two miles to any susceptible crop. (v) Haskell. (1) No permit is required between November 1 and May 20 of the following calendar year. (2) Aerial application of regulated herbicides is prohibited between June 2 and November 1 of each year. (w) Hidalgo. The regulated portion of Hidalgo County is as follows: (1) beginning at north county line and U.S. 281; thence south to FM 495; thence west to State Highway 107 (Conway Drive); thence south to U.S. 83 Expressway; thence west along U.S. 83 to west county line; (2) all other lands in Hidalgo County are exempt from the Act, Subchapter G and regulations adopted thereunder. (x) Houston. That portion of Houston County within the area described below is regulated by the provisions of the Act, Subchapter G and regulations adopted thereunder: (1) beginning at a point where Bedias Creek enters Trinity River; thence north with meanders of the river to the point where Highway Number 7 crosses Trinity River; thence east with Highway Number 7 to city limits of Crockett; thence south to Farm Road Number 2110; thence to Pearson Chapel on Farm Road Number 2110; thence on Farm Road Number 3151 south to intersection of Farm Road Number 230, thence southwest on Farm Road Number 230 to Prison Farm entrance; thence south to Walker County line; thence with Walker and Houston County line to Trinity River and the place of beginning; (2) all other lands in Houston County are exempt from the Act, Subchapter G and regulations adopted thereunder. (y) Hudspeth. (1) The use of all ester formulations of regulated herbicides is prohibited between the dates of April 1 and October 15 of each year. (2) A permit is required for the application of the other formulations of regulated herbicides between the dates of April 1 and October 15 of each year. (3) A permit is not required for the application of the regulated herbicides between the dates of October 16 to March 31 of the following year. (z) Hunt. (1) The aerial application of regulated herbicides shall be prohibited from April 15 through September 1 of each year. (2) No permit is required for the application of regulated herbicides from September 1 of one calendar year through April 15 of the following calendar year. (aa) Jackson. (1) The aerial application of all formulations of 2,4-D is prohibited between March 10 and September 15 of each year. (2) No permit is required for the application of regulated herbicides during the months of January and February of each year. (3) Brazoria, Calhoun, Fort Bend, Jackson, Matagorda, and Wharton Counties, for purposes of this subsection, are considered one unit and paragraph (1) of this subsection is not to be changed without a public hearing for the unit as a whole. (bb) King. Aerial application of regulated herbicides is prohibited between June 10 and October 15 of each year. (cc) Knox. That portion of the county lying north of the Brazos River to its intersection with longitude 99 degrees 35'; thence north to latitude 33 degrees 42' going west to State Highway 6, then north to the Foard County line, west to King County line; thence south to the Brazos River, is exempt from the Act, Subchapter G and regulations adopted thereunder. All other portions of Knox County are required to comply with provisions of the Act, Subchapter G and regulations adopted thereunder, except that during the period between October 1 through March 31 of the following calendar year no permit will be required. (dd) Lamar. (1) That portion of Lamar County beginning at the Red River County line on State Highway 271N, which point is the east boundary line of Lamar County; thence on a northwesterly direction along 271 North to the town of Pattonville; thence in a westerly direction from Pattonville along Jefferson Road for a distance of two miles; thence south on unnamed oil top county road 0.9 mile to community of Shady Grove; thence in a westerly direction on unnamed oil top county road for one mile to the intersection of FM 905; thence south one mile on FM 905 to first unnamed oil top county road in community of Plainview; thence in a westerly direction on county road four miles to the town of Biardstown to intersection of FM 1497; thence northwesterly on FM 1497 0.3 mile to Hickory Creek; thence southeasterly on Hickory Creek to North Sulphur River, which is the south boundary line of Lamar County; thence easterly along the south county line to the southeast corner of the county; thence northerly along the east county line to its intersection with Highway 271 North, to the point of beginning is regulated by the Act, Subchapter G and regulations adopted thereunder. (2) Aerial application of regulated herbicides is prohibited in the regulated portion of Lamar County between April 15 and September 1 each year. (ee) Lamb. During the period between September 15 of one calendar year through April 1 of the following year, no permit will be required for the following regulated herbicides: (1) 2-methyl-4 chlorophenoxyacetic acid (MCPA); (2) polychlorinated benzoic acids; and (3) either alone or in mixtures any of the herbicides listed in paragraph (1) and (2) of this subsection. (ff) Liberty. (1) The application of high volatile herbicides is prohibited. (2) That portion of Liberty County lying south of Luce Bayou from the Harris County line to Highway 321, then the area south of a line from the point where Luce Bayou crosses Highway 321 due east to the Trinity River, then the area east of the Trinity River from this point north to the San Jacinto County line is exempt from the Act, Subchapter G and regulations adopted thereunder. All other portions of Liberty County are required to comply with provisions of the Act, Subchapter G and regulations adopted thereunder. (gg) Matagorda. (1) The aerial application of all formulations of 2,4-D is prohibited between March 10 and September 15 of each year. (2) The application of high volatile herbicides is prohibited. (3) In no case shall 2,4-D be used to treat any area that is nearer than two miles to any susceptible crop. (4) Brazoria, Calhoun, Fort Bend, Jackson, Matagorda, and Wharton Counties, for purposes of this subsection, are considered as one unit, and paragraph (1) of this subsection is not to be changed without a public hearing for the unit as a whole. (hh) Motley. No permit is required for the period of November 1 to May 14 of the following year. (ii) Parmer. No permit is required in Parmer County for applications of regulated herbicides between November 1 and March 31 of the following year. However, the application of all ester formulations of 2,4-D is prohibited between the dates of April 15 and October 1 of each year. (jj) Refugio. (1) The application of the ester formulations of 2,4-D by any means is prohibited between the period of March 1 and September 15 of each year. The aerial application of any formulation of 2,4- D is prohibited between March 10 and September 15 of each year; except that if the county commissioners court determines that no cotton is growing on that date, in said county, permits may be issued until such time the county commissioners court determines that cotton is growing. (2) No permit is required for the application of regulated herbicides during the months of January and February of each year. (kk) Robertson. (1) Persons in that portion of Robertson County, east of State Highway 6, are exempted from requirements of the Act, Subchapter G and regulations adopted thereunder. (2) A permit is required for the application of regulated herbicides in that portion of Robertson County, west of State Highway 6 between the dates of April 1 and September 15 each year. (ll) Runnels. That portion of Runnels County beginning on the west county line at the point of intersection with the Colorado River, east-southeasterly along the Colorado River to its intersection with U.S. Highway 83, thence north along U.S. Highway 83 to its intersection with the north county line, thence westerly along the north Runnels County line to the northwest corner of the county, thence southerly along the west county line to the Colorado River, the point of beginning, is regulated by the Act, Subchapter G and regulations adopted thereunder. In regulated areas, no permit is required from October 1 through May 25 of the following year. The application of ester formulations of regulated herbicides is prohibited from May 26 through September 30 of each year. The application of other regulated herbicides will be allowed beginning May 26 through September 30 of each year provided that a spray permit is obtained prior to each application. (mm) San Patricio. No permit is required during the period beginning September 1 and ending March 1 of the following year. Application of regulated herbicides during the period of March 2 through August 31 must be in compliance with the Act, Subchapter G and regulations adopted thereunder. Only boom-type equipment can be used, for ground applications with nozzle height not to exceed 24 inches and maximum pressure not to exceed 20 pounds per square inch. The use of 2,4-D amine herbicides must meet the following requirements for both ground and aerial applications: (1) wind velocity of 0-5 mph downwind within 16 rows and upwind 8 rows; (2) wind velocity of 6-10 mph downwind 1/8 mile and upwind 8 rows. (nn) Wharton. (1) The aerial application of all formulations of 2,4-D is prohibited in that portion of Wharton County east of the Colorado River between March 10 and September 15 of each year. (2) The application of all formulations of 2,4-D by any method is prohibited during the period beginning March 10 and ending October 1 of each year, in that portion of Wharton County lying west of the Colorado River. (3) The use of high volatile herbicides is prohibited. (4) In no case shall 2,4-D be used to treat any area that is nearer than two miles to any susceptible crop. (5) Brazoria, Calhoun, Fort Bend, Jackson, Matagorda, and Wharton Counties, for purposes of this subsection, are considered as one unit, and paragraph (1) of this subsection is not to be changed without a public hearing for the unit as a whole. (oo) Wilbarger. (1) No permit is required for the application of regulated herbicides during the period of September 16 to May 9 of the following calendar year. (2) The application of the following regulated herbicides is prohibited during the regulated period beginning May 10 and ending September 15 of each year: (A) Ester formulations of 2,4-Dichlorophenoxyacetic Acid (2,4-D); (B) 2-Methyl-4-Chlorophenoxyacetic Acid (MCPA); (3) The aerial application of polychlorinated benzoic acids and 2,4-D amine is prohibited during the regulated period except during the period of May 10 and ending May 20 of each year. Ground applications of polychlorinated benzoic acids and 2,4-D Amine may be made during the regulated period with the requirement of a permit. (4) Research conducted by the Texas A&M University System under the auspices of brush and weed control, using all regulated herbicides, will be allowed during the regulated period. Aerial applications must provide a buffer zone of at least five statute miles from any susceptible crops, and wind velocity must not exceed 10 mph during application. Research will be allowed during the period beginning May 15 and ending September 15 of each year. The department shall be notified before the commencement of such research projects. 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 November 14, 1997. TRD-9715414 Dolores Alvarado Hibbs Deputy General Counsel Texas Department of Agriculture Effective date: December 4, 1997 Proposal publication date: September 5, 1997 For further information, please call: (512) 463-7541 SUBCHAPTER F.Enforcement 4 TAC sec.sec.7.60-7.62 New sec.sec.7.60-7.62 are adopted under the Texas Agriculture Code, Chapter 76, as amended by House Bill 1144, 75th Legislature, 1997, including sec.76.004, which provides the department with the authority to regulate the use of pesticides and provides the department with the authority to carry out the provisions of Chapter 76. 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 November 14, 1997. TRD-9715416 Dolores Alvarado Hibbs Deputy General Counsel Texas Department of Agriculture Effective date: December 4, 1997 Proposal publication date: September 5, 1997 For further information, please call: (512) 463-7541 CHAPTER 11.Herbicide Regulations 4 TAC sec.sec.11.1-11.11 The Texas Department of Agriculture (the department) adopts the repeals to sec.sec.11.1-11.11, concerning Herbicide Regulations, without changes to the proposed text as published in the September 5, 1997 issue of the Texas Register (22 TexReg 8806). House Bill 1144, 75th Legislature, 1997, consolidated the Texas Agriculture Code Chapters 75 (the Texas Herbicide Law) and Chapter 76 (the Texas Pesticide Law) requiring the consolidation of the current regulations adopted under those chapters. The repeals of sec.sec.11.1-11.11 are adopted to allow for adoption by the department of a clearer, more comprehensive set of regulations, consistent with statutory changes made by House Bill 1144. The repeal eliminates the department's current herbicide regulations. No comments were received regarding the adopted repeals. The repeals are adopted under the Texas Agriculture Code, Chapter 76, Subchapter G, as enacted by House Bill 1144, 75th Legislature, 1997, which provides the department with the authority to adopt rules for the regulation of herbicide use; and the Texas Agriculture Code, sec.76.004 which provides the department with the authority to promulgate rules to carry out the provisions of Chapter 76. 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 November 14, 1997. TRD-9715417 Dolores Alvarado Hibbs Deputy General Counsel Texas Department of Agriculture Effective date: December 4, 1997 Proposal publication date: September 5, 1997 For further information, please call: (512) 463-7541 TITLE 7. BANKING AND SECURITIES PART VII. State Securities Board CHAPTER 113.Registration of Securities 7 TAC sec.sec.113.4, 113.11, 113.12 The State Securities Board adopts amendments to sec.sec.113.4, 113.11, and 113.12, concerning registration of securities. Section 113.4 was adopted with changes to the proposed text as published in the August 12, 1997, issue of the Texas Register (22 TexReg 7435). The word "similar" was removed from the second sentence in subsection (c). Section 113.11 and sec.113.12 were adopted without changes and will not be republished. The rules conform to existing law and other agency rules. The amended rules reflect existing law and apprise persons registering securities of the specific guidelines that may apply to their registered offering. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Civil Statutes, Article 581-28-1. Section 28-1 provides the Board with the authority to adopt rules and regulations necessary to carry out and implement the provisions of the Texas Securities Act, including rules and regulations governing registration statements and applications; defining terms; classifying securities, persons, and matters within its jurisdiction; and prescribing different requirements for different classes. sec.113.4.Application for Registration. (a)-(b) (No change.) (c) Variable prices. The Commissioner cannot properly permit variable price approvals on primary sales. However, if good cause is shown, the Commissioner may permit variable pricing on firmly underwritten offerings or continuous offerings such as employee benefit plans. (d)-(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 November 12, 1997. TRD-9715210 Denise Voight Crawford Securities Commissioner State Securities Board Effective date: December 2, 1997 Proposal publication date: August 12, 1997 For further information, please call: (512) 305-8300 CHAPTER 115.Dealers and Salesmen 7 TAC sec.115.1, sec.115.3 The State Securities Board adopts amendments to sec.115.1 and sec.115.3, concerning dealer/investment adviser registration. Section 115.1 was adopted with changes to the proposed text as published in the August 12, 1997, issue of the Texas Register (22 TexReg 7437). The tag line in subsection (g) was changed to clarify that it relates to reporting obligations arising after registration; a modification was made to sec.115.1(g)(1) to clarify that filing a declaration of bankruptcy triggered the supplemental reporting requirement; and subsection (i) was changed to reference Title III of Public Law Number 104-290. Section 115.3 was adopted without changes and will not be republished. The rules set forth a new category of restricted registration and provide the examination requirements for this type of dealer registration, require registered persons to report bankruptcy filings, and clarify the coverage of an exemption from registration as an agent of an investment adviser. The rule will facilitate international trading of securities by dealers from Canada and Japan and improve clarity concerning reporting obligations and registration exemptions. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Civil Statutes, Articles 581-28-1 and 581-12.B. Section 28-1 provides the Board with the authority to adopt rules and regulations necessary to carry out and implement the provisions of the Texas Securities Act, including rules and regulations governing registration statements and applications; defining terms; classifying securities, persons, and matters within its jurisdiction; and prescribing different requirements for different classes. Section 12.B provides that the Board may prescribe dealer/agent registration exemptions by rule. sec.115.1.General Provisions. (a) (No change.) (b) Restricted registration. (1) Any person or company may apply for, and the Securities Commissioner may grant, restricted registration for the purpose of rendering advice regarding or effecting transactions in a particular type or category of securities, or securities representing interests in one or more types or categories of businesses. The restricted registrations are as follows: (A)-(J) (No change.) (K) registration to accept orders unsolicited by such person from existing customers of the dealer; (L) registration to deal exclusively in corporate securities; and (M) registration to deal in all general securities except municipal securities. (2) (No change.) (c)-(f) (No change.) (g) Post-registration reporting requirements. (1) Each person registered as a dealer or investment adviser or as an agent thereof shall report to the Securities Commissioner within 30 days after its entry any action by a self-regulatory organization, any state or federal administrative order, criminal conviction, or court judgment, order, or decree described in paragraph (2) of this subsection which is entered against that person or an officer or agent thereof or the filing of any declaration of bankruptcy by that person. Upon request by the Securities Commissioner, that person may be required to furnish to the Securities Commissioner copies of the order, conviction, or decree, or other documents, as applicable. (2) The following matters must be reported: (A)-(C) (No change.) (D) any expulsion, bar, suspension, censure, fine, or penalty imposed by a self- regulatory organization; and (E) (No change.) (3) (No change.) (h) (No change.) (i) Persons not required to register as an investment adviser or an agent of an investment adviser on or after July 8, 1997, by act of Congress in Public Law Number 104-290, Title III. (1) (No change.) (2) Registration as an agent of an investment adviser described in paragraph (1) of this subsection is not required for an investment adviser agent who does not have a place of business located in Texas but who otherwise engages in the rendering of investment advice in this state. (3) (No change.) (j) (No change.) (k) Applicability of antifraud provisions. Persons not required to register with the Securities Commissioner pursuant to subsections (i) and (j) of this section, are reminded that the Texas Securities Act prohibits fraud or fraudulent practices in dealing in any manner in any securities whether or not the person engaging in fraud or fraudulent practices is required to be registered. The Agency has jurisdiction to investigate and bring enforcement actions to the full extent authorized in the Texas Securities Act with respect to fraud or deceit, or unlawful conduct by a dealer, investment adviser, or agent in connection with transactions involving securities in Texas. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 12, 1997. TRD-9715212 Denise Voight Crawford Securities Commissioner State Securities Board Effective date: December 2, 1997 Proposal publication date: August 12, 1997 For further information, please call: (512) 305-8300 CHAPTER 124.Guielines for Registration of Periodic Payment Plans 7 TAC sec.sec.124.1-124.6 The State Securities Board adopts the repeal of Chapter 124, sec.sec.124.1- 124.6, concerning guidelines for registration of periodic payment plans, without changes to the proposed text as published in the August 12, 1997, issue of the Texas Register (22 TexReg 7439). The repeal recognizes the changes made by the National Securities Markets Improvement Act of 1996, Public Law Number 104-290, which removes most securities issued by open-end investment companies from the registration requirements of state law. Unnecessary rules were eliminated. One comment letter was received regarding adoption of the amendment. That letter, from the Investment Company Institute, supported adoption of the amendment. The Board agreed and adopted the repeals as published. The repeals are adopted under Texas Civil Statutes, Article 581-28-1. Section 28-1 provides the Board with the authority to adopt rules and regulations necessary to carry out and implement the provisions of the Texas Securities Act, including rules and regulations governing registration statements and applications; defining terms; classifying securities, persons, and matters within its jurisdiction; and prescribing different requirements for different classes. 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 November 12, 1997. TRD-9715213 Denise Voight Crawford Securities Commissioner State Securities Board Effective date: December 2, 1997 Proposal publication date: August 12, 1997 For further information, please call: (512) 305-8300 CHAPTER 133.Forms 7 TAC sec.133.33 The State Securities Board adopts an amendment to sec.133.33, concerning two new uniform forms, without changes to the proposed text as published in the August 12, 1997, issue of the Texas Register (22 TexReg 7439). The agency accepts for filing two new uniform forms, Form NF, Uniform Investment Company Notice Filing, and the Model Accredited Investor Exemption Uniform Notice of Transaction. Form NF is used in connection with notice filings for certain federal covered securities, the Model Accredited Investor Exemption Uniform Notice Of Transaction is used in connection with the new exemption in sec.139.19, which was adopted concurrently. Use of the new forms will facilitate notice filings by investment companies and the use of the accredited investor exemption contained in sec.139.19. No comments were received regarding adoption of the new rule. The amendment is adopted under Texas Civil Statutes, Article 581-28-1. Section 28-1 provides the Board with the authority to adopt rules and regulations necessary to carry out and implement the provisions of the Texas Securities Act, including rules and regulations governing registration statements and applications; defining terms; classifying securities, persons, and matters within its jurisdiction; and prescribing different requirements for different classes. 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 November 12, 1997. TRD-9715214 Denise Voight Crawford Securities Commissioner State Securities Board Effective date: December 2, 1997 Proposal publication date: August 12, 1997 For further information, please call: (512) 305-8300 CHAPTER 139.Exemptions by Rule or Order 7 TAC sec.139.18 The State Securities Board adopts new rule sec.139.18, concerning broker-dealer and investment advertising on the Internet, without changes to the proposed text as published in the August 12, 1997, issue of the Texas Register (22 TexReg 7440). The rule provides guidance to dealers, advisers, and their agents who disseminate general information over the Internet regarding their products and services, requires disclosure of affiliations, and establishes responsibility for authorizing, reviewing and approving the content of Internet communications by agents. The required legend must include the information required by subsection (a)(1)(A)-(B), but no specific language for the legend is mandated. The rule will promote legitimate uses of the Internet by the securities industry by providing clarification of the applicability of the Texas Securities Act and Rules to broker-dealers and investment advisers advertising on the Internet. No comments were received regarding adoption of the new rule. The new rule is adopted under Texas Civil Statutes, Articles 581-28-1 and 581- 12.B. Section 28-1 provides the Board with the authority to adopt rules and regulations necessary to carry out and implement the provisions of the Texas Securities Act, including rules and regulations governing registration statements and applications; defining terms; classifying securities, persons, and matters within its jurisdiction; and prescribing different requirements for different classes. Section 12.B provides that the Board may prescribe dealer/agent registration exemptions by rule. 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 November 12, 1997. TRD-9715215 Denise Voight Crawford Securities Commissioner State Securities Board Effective date: December 2, 1997 Proposal publication date: August 12, 1997 For further information, please call: (512) 305-8300 7 TAC sec.139.19 The State Securities Board adopts new rule sec.139.19, concerning an accredited investor exemption, with changes to the proposed text as published in the August 12, 1997, issue of the Texas Register (22 TexReg 7441). Two changes were made to paragraph (10). The first change clarifies when dealer or agent registration is required in conjunction with this exemption. The second change identifies who constitutes the issuer and is, accordingly, covered by the issuer's exemption from dealer registration. The rule exempts issuers offering securities to accredited investors from securities registration requirements under the Texas Securities Act, sec.22 or Chapter 139 of the Board's rules. A notice filing, required under the exemption, would be made on the Model Accredited Investor Exemption Uniform Notice of Transaction, which is being added concurrently to the list of forms accepted by the agency provided in sec.133.33. The rule will facilitate capital raising and the use of electronic designated matching services. No comments were received regarding adoption of the new rule. The new rule is adopted under Texas Civil Statutes, Articles 581-28-1 and 581- 5.T. Section 28-1 provides the Board with the authority to adopt rules and regulations necessary to carry out and implement the provisions of the Texas Securities Act, including rules and regulations governing registration statements and applications; defining terms; classifying securities, persons, and matters within its jurisdiction; and prescribing different requirements for different classes. Section 5.T provides that the Board may prescribe new exemptions by rule. sec.139.19.Accredited Investor Exemption. Any offer or sale of a security by an issuer in a transaction that meets the requirements of this section is exempted from the securities registration requirements of the Texas Securities Act and exempted from the filing requirements contained in the Texas Securities Act, sec.22.A, and Chapter 139 of this title (relating to Guidelines for Regulation of Offers). (1) Who may purchase. Sales of securities shall be made only to persons who are or the issuer reasonably believes are accredited investors. "Accredited investor" is defined in 17 Code of Federal Regulations sec.230.501(a) promulgated by the SEC as made effective in SEC Release Number 33-6389, as amended in Release Numbers 33-6758 and 33-6825. (2) Unavailable for certain issuers. The exemption is not available to an issuer that is in the development stage that either has no specific business plan or purpose or has indicated that its business plan is to engage in a merger or acquisition with an unidentified company or companies, or other entity or person. (3) Investment intent; resales. The issuer reasonably believes that all purchasers are purchasing for investment and not with the view to or for sale in connection with a distribution of the security. Any resale of a security sold in reliance on this exemption within 12 months of sale shall be presumed to be with a view to distribution and not for investment, except a resale pursuant to a registration statement effective under the Texas Securities Act, sec.7, or to an accredited investor pursuant to an exemption available under the Texas Securities Act or Board rules. (4) Disqualifications. (A) The exemption is not available to an issuer if the issuer, any of the issuer's predecessors, any affiliated issuer, any of the issuer's directors, officers, general partners, beneficial owners of 10% or more of any class of its equity securities, any of the issuer's promoters presently connected with the issuer in any capacity, any underwriter of the securities to be offered, or any partner, director, or officer of such underwriter: (i) within the last five years, has filed a registration statement which is the subject of a currently effective registration stop order entered by any state securities administrator or the United States Securities and Exchange Commission; (ii) within the last five years, has been convicted of any criminal offense in connection with the offer, purchase, or sale of any security, or involving fraud or deceit; (iii) is currently subject to any state or federal administrative enforcement order or judgment, entered within the last five years, finding fraud or deceit in connection with the purchase or sale of any security; or (iv) is currently subject to any order, judgment, or decree of any court of competent jurisdiction, entered within the last five years, temporarily, preliminarily, or permanently restraining or enjoining such party from engaging in or continuing to engage in any conduct or practice involving fraud or deceit in connection with the purchase or sale of any security. (B) Subparagraph (A) of this paragraph shall not apply if: (i) the party subject to the disqualification is licensed or registered to conduct securities related business in the state in which the order, judgment, or decree creating the disqualification was entered against such party; (ii) before the first offer under this exemption, the state securities administrator, or the court or regulatory authority that entered the order, judgment, or decree, waives the disqualification; or (iii) the issuer establishes that it did not know and in the exercise of reasonable care, based on a factual inquiry, could not have known that a disqualification existed under this subsection. (5) General announcement. (A) A general announcement of the proposed offering may be made by any means. (B) The general announcement shall include only the following information, unless additional information is specifically permitted by the Securities Commissioner: (i) the name, address, and telephone number of the issuer of the securities; (ii) the name, a brief description, and price (if known) of any security to be issued; (iii) a brief description of the business of the issuer in 25 words or less; (iv) the type, number, and aggregate amount of securities being offered; (v) the name, address, and telephone number of the person to contact for additional information; and (vi) a statement that: (I) sales will only be made to accredited investors; (II) no money or other consideration is being solicited or will be accepted by way of this general announcement; and (III) the securities have not been registered with or approved by any state securities agency or the U.S. Securities and Exchange Commission and are being offered and sold pursuant to an exemption from registration. (6) Provision of additional information. The issuer, in connection with an offer, may provide information in addition to the general announcement under paragraph (5) of this section, if such information: (A) is delivered through an electronic database that is restricted to persons who have been prequalified as accredited investors; or (B) is delivered after the issuer reasonably believes that the prospective purchaser is an accredited investor. (7) Telephone solicitation. No telephone solicitation shall be permitted unless prior to placing the call, the issuer reasonably believes that the prospective purchaser to be solicited is an accredited investor. (8) Loss of exemption. Dissemination of the general announcement of the proposed offering to persons who are not accredited investors shall not disqualify the issuer from claiming the exemption under this section. (9) Filing. The issuer shall file with the Securities Commissioner a notice of transaction, a consent to service of process, and a copy of the general announcement within 15 days after the first sale in this state. (10) Dealer and agent registration. Although the issuer is not required to register as a dealer to conduct sales pursuant to this section, third parties must comply with the dealer and agent registration requirements of the Texas Securities Act and Board rules. For the purposes of this section, the term "issuer" includes any director, officer, or employee of the issuer provided all the following conditions are satisfied: (A) the director, officer, or employee was not hired for the purpose of offering or selling such securities; (B) the director's, officer's, or employee's activity involving the offer and sale of such securities is strictly incidental to his or her bona fide primary non-securities related work duties; and (C) the director's, officer's, or employee's compensation is based solely on the performance of other such duties, i.e., the director, officer, or employee does not receive any compensation for offering for sale, selling, or otherwise aiding in the sale of securities. 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 November 12, 1997. TRD-9715216 Denise Voight Crawford Securities Commissioner State Securities Board Effective date: December 2, 1997 Proposal publication date: August 12, 1997 For further information, please call: (512) 305-8300 TITLE 19. EDUCATION PART I. Texas Higher Education Coordinating Board CHAPTER 5.Program Development SUBCHAPTER A.General Provisions 19 TAC sec.5.9 The Texas Higher Education Coordinating Board adopts Chapter 5, Subchapter A, new sec.5.9 concerning General Provisions (Uniform Admission Policy) with changes to the proposed text as published in the September 5, 1997 issue of the Texas Register (22 TexReg 8829). The change was made by adding a new subsection (d). Comments were received from a high school counselor in San Antonio, Texas who had some concerns regarding the need to calculate the top 10% of the high school class. The agency explained that a standard method of calculation was necessary to fairly implement automatic admissions based upon class ranking. The new section to the rules is adopted under HB588, 75th legislative session and Texas Education Code, Section 51.807 which provides the Texas Higher Education Coordinating with the authority to adopt rules concerning General Provisions (Uniform Admission Policy). sec.5.9. Uniform Admission Policy. (a) Each general academic teaching institution as defined by Texas Education Code, Section 61.003 shall admit first-time freshmen students for each semester in accordance with Texas Education Code, Chapter 51, Subchapter S. (b) All applicants from Texas schools accredited by a generally recognized accrediting agency and who graduate in the top ten percent of their high school class shall be admitted to a general academic institution if the student meets the following conditions: (1) The student graduated from high school within the two years prior to the academic year for which the student is applying, and; (2) The student submitted a complete application as defined by the institution before the expiration of the institution's established deadline. (c) High school rank for students seeking automatic admission to a general academic teaching institution on the basis of their class rank is determined and reported as follows: (1) Class rank shall be based on the end of the 11th grade, middle of the 12th grade, or at high school graduation, whichever is most recent at the application deadline. (2) The top ten percent of a high school class shall not contain more than ten percent of the total class size. (3) The student's rank shall be reported by the applicant's high school or school district as a specific number out of a specific number total class size. (4) Class rank shall be determined by the Texas school or school district from which the student graduated or is expected to graduate. (d) A general academic teaching institution may limit the number of students admitted under Texas Education Code, Chapter 51, Subchapter S if the number of applicants eligible and applying for admission to the institution under Texas Education Code Section 51.803 exceeds by more than ten percent the average number of first-time freshmen admitted the previous two academic years. The institution may limit the number of students admitted under Texas Education Code Section 51.803 if: (1) At least 97 percent of first-time freshmen admitted are in the top ten percent of their high school class and; (2) Clear guidelines are established for the selection of students based on one or a specified combination of the following methods: (A) A lottery in which all students qualified for automatic admission have an equal chance for selection; (B) Students are selected on a first-come, first-admitted basis following receipt of a complete application; or (C) At least four or more criteria identified in Texas Education Code 51.805 are used to select students admitted. (e) Each general academic teaching institution shall annually report to the Board the composition of the entering class of first-time freshmen students admitted under Texas Education Code, Sections 51.803, 51.804, and 51.805. The report shall include a demographic breakdown of the class including race, ethnicity, and economic status. Each general academic teaching institution shall provide this report to the Board annually on or before a date set by the Board and in a manner prescribed in the "Instructions for Completing Texas Educational Opportunity (TXP)" form. 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 November 7, 1997. TRD-9715204 James McWhorter Assistant Commissioner for Administration Texas Higher Education Coordinating Board Effective date: December 2, 1997 Proposal publication date: September 5, 1997 For further information, please call: (512) 483-6162 PART II. Texas Education Agency CHAPTER 33. Statement of Investment Objectives, Policies, and Guidelines of the Texas Permanent School Fund 19 TAC sec.33.45 The Texas Education Agency (TEA) adopts an amendment to sec.33.45, concerning the policy for voting proxies of securities held in the Texas Permanent School Fund (PSF), without changes to the proposed text as published in the October 3, 1997, issue of the Texas Register (22 TexReg 9795). The adopted amendment would authorize the executive administrator to delegate voting of proxies for securities not held in the internally managed portfolio of the PSF. The new requirements are necessary in order to incorporate the knowledge of external investment managers in voting securities contained in the externally managed portfolios. External managers will be required to vote all proxies in the best interest of the PSF and held to the same voting policy as the internally managed portfolio. There will be no change in the reporting of the voting on non-routine business matters. The income of the PSF will flow to school districts and reduce the tax burden to the public and the state of Texas. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Education Code, sec.7.102(b)(32), which authorizes the State Board of Education to invest the PSF within the limits of the authority granted by the Texas Constitution, Article VII, sec.5(d), and the Texas Education Code, Chapter 43. 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 November 17, 1997. TRD-9715443 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1998 Proposal publication date: October 3, 1997 For further information, please call: (512) 463-9701 CHAPTER 105. Foundation School Program The Texas Education Agency (TEA) adopts the repeal of sec.105.1001 and new sec.105.1001, concerning optional extended year program, without changes to the proposed text as published in the October 3, 1997, issue of the Texas Register (22 TexReg 9795). The new section provides support for school districts to reduce and ultimately eliminate retention in Kindergarten through Grade 8. The new section contains more specific criteria concerning student and district eligibility, maximum entitlement, per capita amount, and reallocation. The new section also establishes requirements for follow-up activities, training, and evaluation. The new requirements are necessary to ensure consistent administration of the optional extended year grant program and to give school districts well-defined guidelines for applying for funds. In 1995, the Texas Legislature established the Optional Extended Year Program for students in Kindergarten- Grade 8. House Bill 1, General Appropriations Act, 75th Texas Legislature, Article IX, Rider 167, establishes a four-year sunset review cycle for all state agency rules. The TEA is also conducting a review of 19 Texas Administrative Code (TAC) Chapter 105, Subchapter AA, Commissioner's Rules Concerning Optional Extended Year Program, in accordance with Rider 167. As stated above, the TEA finds sufficient reason for the rule to continue to exist and is repealing and readopting the rule as indicated. No changes have been made since the section was proposed. The following public comment has been received regarding adoption of the new section. Comment. Arlington Independent School District requested that the number of economically disadvantaged Prekindergarten students be included with the Kindergarten-Grade 8 economically disadvantaged students for determining a school district's eligibility under the Optional Extended Year Program. Agency Response. The agency disagrees with this comment. Under the Texas Education Code, sec.29.082, the Optional Extended Year Program allows for eligible students in Kindergarten-Grade 8 to be served. Therefore, only Kindergarten-Grade 8 is used for determining a school district's percentage of economically disadvantaged students. The repeal is adopted under the Texas Education Code, sec.29.082, as amended by House Bill 4, 75th Texas Legislature, which authorizes the commissioner of education to adopt rules concerning Optional Extended Year Program. 105.1001. Optional Extended Year Program. SUBCHAPTER AA. Commissioner's Rules Concerning Optional Extended Year Program 19 TAC sec.105.1001 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 November 10, 1997. TRD-9715055 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: December 1, 1997 Proposal publication date: October 3, 1997 For further information, please call: (512) 463-9701 The new section is adopted under the Texas Education Code, sec.29.082, as amended by House Bill 4, 75th Texas Legislature, which authorizes the commissioner of education to adopt rules concerning Optional Extended Year Program. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 10, 1997. TRD-9715056 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: December 1, 1997 Proposal publication date: October 3, 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.101.1 The State Board of Dental Examiners adopts amendments to sec.101.1, concerning general licensure qualifications for dental applicants with changes to proposed text as published in the September 19, 1997, issue of the Texas Register (22 TexReg 9410). The amended sec.101.1 ensures that applicants for dental licensure will be highly skilled and ethical practitioners because they will be (a) of good moral character, (b) successful completers of a dental training program accredited by the Commission on Dental Accreditation of the American Dental Association, (c) successful completers of the written examination given by the American Dental Association's Joint Commission on National Dental Examinations, and (d) successful completers of either a clinical examination in general dentistry or in specialized dentistry. The amended sec.101.1 includes a change proposed by the Texas Dental Hygienist' Association for rule 103.1, a rule providing for licensing of dental hygienists. The comment for rule 103.1 is well taken and has equal application to this rule. Accordingly the phrase "or accompanying" is added to section (a)(2) to provide that required application information should either be on an approved form or accompany the application. The amended rule provides guidance to the board in determining whether an applicant is of good moral character. Further, the rule as amended is intended to more closely track statutory provisions for licensure by establishing general requirements for all applicants seeking dental licensure through examination, and by subsections (b) (c) and (d) which respectively provide procedures for licensure by applicants who have graduated from accredited schools, who have graduated from non accredited schools and who seek licensure by specialty examinations. Further, the rule provides that an application is filed when a fully completed form is actually received by the board. 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 4543sec.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 4544 which provides for examinations of dental applicants; and Article 4545 which establishes the qualifications applicants must meet. sec.101.1.Licensure by Examination. (a) General Qualifications: (1) Any person desiring to practice dentistry in the State of Texas must possess a license issued by the State Board of Dental Examiners as required by law. (2) To be eligible for licensure, all applicants must present on or accompanying a licensure application form approved by the State Board of Dental Examiners satisfactory proof to the Board that the applicant: (A) Is at least twenty-one (21) years of age; (B) Is of good moral character. (i) Good moral character is demonstrated by patterns of personal, academic and occupational behaviors which, in the judgment of the Board, indicate honesty, accountability, trustworthiness, reliability, and integrity. (ii) Information concerning an applicant's background included in the application form will be the primary source for such proof. The Board may request additional information. (C) Has taken and passed the examination for dentists in its entirety given by the American Dental Association Joint Commission on National Dental Examinations; (D) Has successfully completed a current course in basic life support given by the American Heart Association or the American Red Cross; (E) Has taken and passed the jurisprudence examination administered by the State Board of Dental Examiners within one year immediately prior to application; (F) Has paid all application/examination and licensing fees required by law and Board rules and regulations. (b) Graduates of accredited schools. (1) Graduates of accredited schools must present proof that applicant: (A) Has graduated from a dental school accredited by the Commission on Dental Accreditation of the American Dental Association. The term graduated shall be defined as having been awarded either the "DDS" or "DMD" degree from a school accredited by the Commission on Dental Accreditation of the American Dental Association. (B) Has taken and passed in its entirety the appropriate general dentistry clinical examination administered by a regional examining board designated by the State Board of Dental Examiners. (2) Graduates of accredited schools must meet all the criteria set forth in subsection (a) of this title. (c) Graduates of non-accredited schools. (1) Graduates of non-accredited schools must present proof that applicant: (A) Has graduated from a dental school that is not accredited by the Commission on Dental Accreditation of the American Dental Association and has successfully completed training in an American Dental Association approved specialty in an education program that is accredited by the Commission on Dental Accreditation and that consists of a least two years of training as specified by the Council on Dental Education; (B) Has taken and passed in its entirety the appropriate general dentistry clinical examination administered by a regional examining board designated by the State Board of Dental Examiners. Many regional testing boards require prior written approval by the participating member state in order for graduates of non-accredited schools to be tested. Prior to submitting an application for regional examination, graduates of non-accredited schools must obtain such permission from the State Board of Dental Examiners. (2) Graduates of non-accredited schools must meet all the criteria set forth in subsection (a) of this title. (d) Licensure by specialty examination. (1) Applicants for licensure by specialty examination must present proof that applicant has either; (A) successfully completed training in an American Dental Association approved specialty in an education program that is accredited by the Commission on Dental Accreditation of the American Dental Association; or (B) has been certified by an American Dental Association approved specialty board that the applicant is or, at any time, was recognized as "Board Eligible." (2) Is currently licensed as a dentist in good standing in another state, the District of Columbia, or a territory of the United States provided that such licensure followed successful completion of a general dentistry clinical examination administered by another state or regional testing service. (3) Has taken and passed a specialty examination administered by a regional examining board designated by the State Board of Dental Examiners. Many regional testing boards require prior written approval by the participating member state in order for graduates of non-accredited schools to be tested. Prior to submitting an application for regional examination, graduates of non-accredited schools must obtain such permission from the State Board of Dental Examiners. (4) Applicants for specialty examination must meet all the criteria set forth in subsection (a) of this title. (e) Applications for licensure must be delivered to the office of the State Board of Dental Examiners. (f) An application for licensure is filed with the State Board of Dental Examiners when it is actually received, date-stamped, and logged-in by the State Board of Dental Examiners along with all required documentation and fees. An incomplete application for licensure and fee will be returned to applicant within three working days with an explanation of additional documentation or information needed. (g) In the event an applicant is uncertain whether he/she is qualified according to rule and law for licensure as a dentist, prior to taking the clinical examination, a written request may be submitted by the applicant with all proof required other than clinical examination scores. The State Board of Dental Examiners will review the information and advise the applicant whether he or she is qualified for licensure pending successful completion of the clinical examination. The qualifying clinical examination must be taken within one year of the date of being so advised by the State Board of Dental Examiners. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 13, 1997. TRD-9715256 Douglas A. Beran, Ph.D. Executive Director State Board of Dental Examiners Effective date: December 3, 1997 Proposal publication date: September 19, 1997 For further information, please call: (512) 463-6400 22 TAC sec.101.5 The State Board of Dental Examiners adopts the repeal of sec.101.5, concerning examinations administered by the State Board of Dental Examiners without changes to proposed text as published in the September 19, 1997, issue of the Texas Register (22 TexReg 9413). The rule is repealed pursuant to Article 4544 sec.1 that provides for a regional testing service to administer the clinical and written examinations rather than the State Board of Dental Examiners itself. No comments were received regarding the repeal of the rule. The rule is repealed under Texas Government Code sec.2001.021 et. seq; Texas Civil Statutes, and Article 4544sec.1 that requires the SBDE to contract with an independent or regional testing service. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 13, 1997. TRD-9715255 Douglas A. Beran, Ph.D. Executive Director State Board of Dental Examiners Effective date: December 3, 1997 Proposal publication date: September 19, 1997 For further information, please call: (512) 463-6400 22 TAC sec.101.7 The State Board of Dental Examiners adopts amendments to sec.101.7, concerning licensure of dentists by credentials without changes to proposed text as published in the September 19,1997, issue of the Texas Register (22 TexReg 9414). The amended sec.101.7 ensures that applicants for dental licensure by credentials will be highly skilled practitioners because they shall (a) be graduates of a dental school accredited by the Commission on Dental Accreditation of the American Dental Association, (b) have practiced as a practitioner or educator for five years prior to application, (c) be licensed in another jurisdiction with licensure requirements equivalent to Texas, and (d) have passed the Texas jurisprudence examination. The amended rule implements changes in Article 4545a by changing paragraphs (3)(B), (9), (12) and (13). Paragraph 3(B) as amended reflects new language in the Dental Practice Act that requires dental educators' experience to have been immediately prior to applying for licensure by credentials . This provision now tracks the requirement for applicants with dental practice experience. Paragraph (9) was added to require that dental practice experience must be subsequent to graduation from a Commission on Dental Accreditation (CODA) accredited school. Board members in the past while reviewing applications for licensure by credentials had expressed concern that an applicant could use pre-graduation experience as a basis for licensure, since such experience could have been realized without benefit of education equivalency to that required of Texas licensed dentists. Such an applicant may not have been in a position to gain as much from the practice as one whose education meets CODA standards. The Board views the experience requirement for those seeking licensure by credentials as an important feature of the process and as one that is designed to protect Texas citizens by ensuring that only well qualified practitioners are licensed. 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 4543sec.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 4545a which provides for dental licensure by credentials of qualified applicants 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 November 13, 1997. TRD-9715257 Douglas A. Beran, Ph.D. Executive Director State Board of Dental Examiners Effective date: December 3, 1997 Proposal publication date: September 19, 1997 For further information, please call: (512) 463-6400 CHAPTER 102.Fees 22 TAC sec.102.2 The State Board of Dental Examiners proposes new sec.102.2, concerning open records fees without changes to proposed text as published in the September 19, 1997, issue of the Texas Register (22 TexReg 9415). The new sec.102.2 provides that the public will be fully informed regarding the charges the State Board of Dental Examiners will impose for open records requests. The new sec.102.2 rule implements guidelines prepared by the General Services Commission (GSC) for charges for copies of public information except for fax charges. The Texas Dental Hygienists' Association in its letter of October 20, 1997 commented that long distance charges of $1.00 per page for a fax sent to area codes other than (512) should be $.50 per page. The charge of $1.00 per page was listed in the GSC's guidelines adopted prior to 1997. However, GSC's 1997 guidelines do not include fax charges. Nevertheless, agencies may request exceptions to the GSC published guidelines. The Board responds to numerous requests for fax transmissions of public records and, in the Board's efforts to serve the public expeditiously, responds by fax. The Board's budget does not include sufficient funds for the Board to bear the fax costs without recovery. The Board has requested an exemption to GSC's guidelines and the GSC has approved. That exemption is reflected in the proposed rule's fax costs. Concomitantly, the Board does not accept the proposed change. The new rule is adopted under Texas Government Code sec.2001.021 et.seq; Texas Government Code sec.552.001 et. seq. 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 November 13, 1997. TRD-9715268 Douglas A. Beran, Ph.D. Executive Director State Board of Dental Examiners Effective date: December 3, 1997 Proposal publication date: September 19, 1997 For further information, please call: (512) 463-6400 CHAPTER 103.Dental Hygiene Licensure 22 TAC sec.103.1 The State Board of Dental Examiners adopts amendments to sec.103.1, concerning general licensure qualifications for dental hygiene applicants with changes to proposed text as published in the September 19, 1997, issue of the Texas Register (22 TexReg 9416). The amended sec.103.1 ensures that applicants for dental hygiene licensure will be highly skilled practitioners because they will (a) be successful completers of a dental hygiene training program accredited by the Commission on Dental Accreditation of the American Dental Association, (b) successful completers of the written dental hygiene examination given by the American Dental Association's Joint Commission on National Dental Examinations, and (c) successful completers of a dental hygiene clinical examination. The amended rule includes language proposed by the Texas Dental Hygienists' Association that would make it clear that application information should either be on a board approved form or accompanying the form. The comment is well taken and accordingly the phrase "or accompanying" is added to subsection (b) as proposed. Further, the Association proposed to add in paragraph (3) of subsection (b) the phrase "with a degree in dental hygiene" at the end of the sub-division. Thus only those with dental hygiene degrees would be eligible for licensure. It has been the practice of the Board to allow graduates of dental schools who successfully complete other dental hygiene licensing requirements to use their dental degrees rather than requiring a dental hygiene degree. Graduates of dental schools have been educated in all areas required of dental hygienists. Further, the Dental Practice Act at Article 4551e, Sec. 2 provides that an applicant for licensure as a dental hygienist must have graduated from either a dental or dental hygiene school accredited by the Commission on Dental Accreditation. This language allows persons with dental degrees to become dental hygienists and the Board through its rule may not eliminate that provision. The concern of the Texas Dental Hygienists' Association that individuals without a dental hygiene degree, as a minimum, could perhaps become licensed is on point. Accordingly, the Board will include the TDHA proposed phrase and will include language to make it clear that persons with dental degrees may also obtain dental hygiene licensure. The Dental Hygiene Advisory Committee at its September 19, 1997 meeting commented in favor of the rule as amended. The Texas Dental Hygienists' Association in its letter of October 20, 1997 recommended changes which have been addressed above. 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; Article 4551e sec.2, which establishes the qualifications applicants must meet and Article 4551e sec.5 which provides for examination of dental hygiene applicants. sec.103.1. General Qualifications. (a) Any person desiring to practice dental hygiene in the State of Texas must possess a license issued by the Texas State Board of Dental Examiners as required by law. (b) To be eligible for licensure, an applicant must present on or accompanying a form approved by the State Board of Dental Examiners satisfactory proof to the Board that the applicant: (1) Is at least eighteen (18) years of age; (2) Has graduated from an accredited high school or holds a certificate of high school equivalency, General Equivalency Diploma (GED). (3) Has graduated from a recognized dental school or college of dentistry accredited by the Commission on Dental Accreditation of the American Dental Association and approved by the State Board of Dental Examiners with a degree in dentistry or a degree or certificate in dental hygiene, or has graduated from a recognized school or college of dental hygiene accredited by the Commission on Dental Accreditation of the American Dental Association and approved by the State Board of Dental Examiners with a degree in dental hygiene. (4) Has taken and passed the examination for dental hygienists in its entirety given by the American Dental Association Joint Commission on National Dental Examinations. (5) Has successfully completed a current course in basic life support given by the American Heart Association or the American Red Cross. (6) Has taken and passed the jurisprudence examination administered by the State Board of Dental Examiners within one year immediately prior to application. (7) Has taken and passed in its entirety the appropriate clinical examination administered by a regional examining board designated by the State Board of Dental Examiners; and (8) Has paid all application/examination and licensing fees required by law and Board rules and regulations. (c) Applications must be delivered to the office of the State Board of Dental Examiners. (d) An application for licensure is filed with the State Board of Dental Examiners when it is actually received, date-stamped, and logged-in by the SBDE along with all required documentation and fees. An incomplete application for licensure and fee will be returned to applicant within three working days with an explanation of additional documentation or information needed. (e) In the event an applicant is uncertain whether he/she is qualified according to rule and law for licensure as a dental hygienist, prior to taking the clinical examination a written request may be submitted by the applicant with all proof required other than clinical examination scores. The State Board of Dental Examiners will review the information and advise the applicant whether he or she is qualified for licensure pending successful completion of the clinical examination. The qualifying clinical examination must be taken within one year of the date of being so advised by the State Board of Dental Examiners. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 13, 1997. TRD-9715258 Douglas A. Beran, Ph.D. Executive Director State Board of Dental Examiners Effective date: December 3, 1997 Proposal publication date: September 19, 1997 For further information, please call: (512) 463-6400 22 TAC sec.103.2 The State Board of Dental Examiners adopts amendments to sec.103.2, concerning licensure of dental hygienists by credentials with changes to proposed text as published in the September 19,1997 issue of the Texas Register (22 TexReg 9418). The amended sec.103.2 ensures that applicants for dental hygiene licensure by credentials will be highly skilled practitioners because they will (a) be graduates of a dental hygiene school accredited by the Commission on Dental Accreditation of the American Dental Association, (b) have practiced as a practitioner or educator for five years prior to application, (c) be licensed in another jurisdiction with licensure requirements equivalent to Texas, and (d) have passed the Texas jurisprudence examination. The rule as amended includes a change in paragraph (11) to correct a typographical error and now includes the words "Article 4545a" followed by the words Section 1(a)(6). The amended rule implements changes in Article 4545a by changing paragraph (3)(B), (9), (12) and (13). Paragraph 3(B) as amended reflects new language in the Dental Practice Act that requires dental educators' experience to have been immediately prior to applying for licensure by credentials. This provision now tracks the requirement for applicants with dental practice experience. Paragraph (9) was added to require that dental hygiene practice experience must be subsequent to graduation from a Commission on Dental Accreditation (CODA) accredited school. Board members in the past while reviewing applications for licensure by credentials had expressed concern that an applicant could use pre- graduation experience as a basis for licensure, since such experience could have been realized without benefit of education equivalent to that required of Texas licensed dental hygienist. Such an applicant may not have been in a position to gain as much from the practice as one whose education meets CODA standards. The Board views the experience requirement for those seeking licensure by credentials as an important feature of the process and as one that is designed to protect Texas citizens by ensuring that only well qualified practitioners are licensed. The Dental Hygiene Advisory Committee at its September 19, 1997 meeting commented in favor of the rule as amended. The amended rule is adopted under Texas Government Code sec.2001.021 et. seq; Texas Civil Statutes, Article 4543sec.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 4545a which provides for dental hygiene licensure by credentials of qualified applicants. sec.103.2.Licensure by Credentials, Dental Hygienists. The State Board of Dental Examiners will license dental hygiene applicants by credentials upon payment of a fee, in the amount set by the Board, who meet all SBDE and State of Texas minimum applicant requirements, general licensure qualifications, and all of the following criteria: (1) Has graduated from a dental hygiene school accredited by the Commission on Dental Accreditation of the American Dental Association. Dental Hygiene schools so accredited are approved by the State Board of Dental Examiners for purposes of licensing their graduates by credentials. (2) Is currently licensed in good standing in another state, the District of Columbia, or territory of the United States, that has licensing requirements that are substantially equivalent to the requirements of the Texas Dental Practice Act. (3) Has practiced dental hygiene: (A) For a minimum of five years immediately prior to applying. An applicant has practiced dental hygiene for five years if he or she has been actively engaged in practice for at least twenty-six weeks in each of the past five years preceding application. (B) As a dental educator at a dental or dental hygiene school accredited by the Commission on Dental Accreditation of the American Dental Association for a minimum of five years immediately prior to applying. (4) Is endorsed by the state board of dentistry of the jurisdiction of current practice. Such endorsement is established by providing a copy under seal of the jurisdictional entity of the current dental hygienist's license and by a certified statement that he/she has current good standing in said jurisdiction. (5) Has not been the subject of final or pending disciplinary action in any jurisdiction in which applicant is or has been licensed. (6) Has taken and passed the jurisprudence examination administered by the State Board of Dental Examiners within one year immediately prior to application. (7) Has passed a national written examination relating to dental hygiene as certified by the American Dental Association Joint Commission on National Dental Examinations or other examination approved by the SBDE. (8) Is reputable, as demonstrated by at least 2 letters of character reference which have been notarized. (9) Practice experience described in subsection (3) of this title must be subsequent to applicant having graduated from a dental hygiene school accredited by the Commission on Dental Accreditation of the American Dental Association. (10) Each candidate for licensure by credentials must submit to the Credentials Review Committee of the Board the required documents and information prescribed in this rule 103.2 and other documents or information that may be requested to enable the Committee to evaluate appropriately an application and to make a recommendation to the Board for action on the application. (11) Each applicant must show proof of current CPR certification as required by the Texas Dental Practice Act, Article 4545a, Sec. 1(a)(6). (12) Applications must be delivered to the office of the State Board of Dental Examiners. (13) An application for licensure is filed with the State Board of Dental Examiners when it is actually received, date-stamped, and logged-in by the State Board of Dental Examiners along with all required documentation and fee. An incomplete application for licensure and fee will be returned to applicant within three working days with an explanation of additional documentation or information needed. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 13, 1997. TRD-9715259 Douglas A. Beran, Ph.D. Executive Director State Board of Dental Examiners Effective date: December 3, 1997 Proposal publication date: September 19, 1997 For further information, please call: (512) 463-6400 22 TAC sec.103.3 The State Board of Dental Examiners proposes the repeal of sec.103.3, concerning licensing of graduates of foreign dental hygiene schools without changes to proposed text as published in the September 19, 1997, issue of the Texas Register (22 TexReg 9419). The rule is repealed pursuant to Article 4551esec.5, in that the authority for such a rule was removed from the Dental Practice Act by the 75th Legislature. The Dental Hygiene Advisory Committee at its September 19, 1997 meeting commented in favor of the repeal of the rule. The Texas Dental Hygienists' Association in its letter of October 20,1997 commented in favor of the repeal of the rule. The rule is repealed under Texas Government Code sec.2001.021 et. seq; Texas Civil Statutes, and Article 4551esec.5 Article 4543sec.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. It is also repealed in response to the deletions by the legislature of Article 4545asec.2 which formerly provided for licensure of graduates of non-accredited dental hygiene schools; there is no such provision of the Dental Practice Act currently in effect. 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 November 13, 1997. TRD-9715260 Douglas A. Beran, Ph.D. Executive Director State Board of Dental Examiners Effective date: December 3, 1997 Proposal publication date: September 19, 1997 For further information, please call: (512) 463-6400 22 TAC sec.103.11 The State Board of Dental Examiners adopts the repeal of sec.103.11, concerning examinations without changes to proposed text as published in the September 19, 1997, issue of the Texas Register (22 TexReg 94120). The rule is repealed pursuant to Article 4551e sec.5 that provides for a regional testing service to administer the dental hygiene clinical and written examination rather than the State Board of Dental Examiners itself. The Dental Hygiene Advisory Committee at its September 19, 1997 meeting commented in favor of the repeal of the rule. The rule is repealed under Texas Government Code sec.2001.021 et. seq; Texas Civil Statutes, and Article 4551esec.5 that requires the State Board of Dental Examiners to contract with an independent or regional testing service. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 13, 1997. TRD-9715261 Douglas A. Beran, Ph.D. Executive Director State Board of Dental Examiners Effective date: December 3, 1997 Proposal publication date: September 19, 1997 For further information, please call: (512) 463-6400 CHAPTER 107.Dental Board Procedures 22 TAC sec.107.300 The State Board of Dental Examiners adopts amendments to sec.107.300, concerning registration of non-profit corporations authorized to hire dentists with changes to proposed text as published in the September 19, 1997, issue of the Texas Register (22 TexReg 9420). The amended sec.107.300 provides that organizations that are non profit and that provide services to underserved populations at a reduced or no fee or provide services to individuals having AIDS or the human immunodeficiency virus may be certified by the State Board of Dental Examiners as organizations that may employ dentists. The amended rule includes a change in subsection (a)(C)(i) to correct a typographical error as originally published to now read "sec.256" instead of "sec.2.56" as written. The amended rule is intended to reflect changes to Texas Civil Statutes, Article 4551 (Vernon 1997) which expanded the reach of Article 4551n to include organizations that provide services at no fee or for a reduced fee to underserved populations or to include organizations providing services primarily to individuals having AIDS or the human immunodeficiency virus. The rule provides that underserved populations are made up of individuals from families earning income below the federal poverty guidelines. The intent is to allow a broad range of clinics to meet this test with relative ease since the organizations must be established under the Texas Non-Profit Corporation Act and must have been approved by Internal Revenue Service for IRC sec.501(3)(C) status. Similarly, the test for determining if fees are reduced is not difficult to meet as charging Medicaid approved fees will meet the test. 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 4543sec.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 4551n which was amended effective September 1, 1997 to include non profit organizations other than those meeting certain federal guidelines in the group by which dentists may be employed. sec.107.300. Registration of Non-profit Corporations Authorized to Hire Dentists. (a) The State Board of Dental Examiners will approve and certify any health organization or other organization qualified to contract with or employ dentists upon submission of an application meeting the following requirements: (1) A written request to the Board by the organization's chief executive officer will suffice as the application; (2) The following documentation shall be submitted: (A) a copy of the certificate of incorporation under the Texas Non-Profit Corporation Act; (B) written proof of a determination by the Internal Revenue Service that the organization is tax exempt under the Internal Revenue Code pursuant to sec.501 (c)(3); and (C) either written proof that the organization is (i) organized and operated as a migrant, community or homeless health center under the authority of and in compliance with 42 United State Code sec.254 (b) or (c), or sec.256, or a federally qualified health center under 42 United States Code sec.1396d (1)(2)(B);or, (ii) written proof that the organization provides services at no fee or a reduced fee to underserved populations; or, (iii) written proof that the organization will hire dentists to staff a clinic that provides services primarily to persons having AIDS or the human immunodeficiency virus. (b) For purposes of this rule, the terms "reduced fee" and "underserved populations" have the following meanings: (1) Reduced fee - a fee that is less than that charged by other dental service providers in the area for the same service; or, fees that are equal to or less than those provided by Medicaid for a service. (2) Underserved populations - individuals whose income, or individuals from families earning income that is below the federal poverty guidelines as established by the federal government. (c) The Board may refuse to approve and certify or may revoke an approval or certification if in the Board's determination a health organization is established, organized, or operated in contravention of or with the intent to circumvent any of the provisions of the Dental Practice Act. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 13, 1997. TRD-9715262 Douglas A. Beran, Ph.D. Executive Director State Board of Dental Examiners Effective date: December 3, 1997 Proposal publication date: September 19, 1997 For further information, please call: (512) 463-6400 CHAPTER 109.Conduct 22 TAC sec.109.201 The State Board of Dental Examiners adopts new sec.109.201 concerning, requirements for licensees practicing under a trade name without changes to proposed text as published in the September 19,1997 issue of the Texas Register (22TexReg9421). The new sec.109.201 ensures that dentists and dental organizations practicing under a corporation, company, association, or trade name will be required to file with the State Board of Dental Examiners the names of dentists practicing under such trade name. 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 4543sec.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 4548e which authorizes practice under a trade name. 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 November 13, 1997. TRD-9715263 Douglas A. Beran, Ph.D. Executive Director State Board of Dental Examiners Effective date: December 3, 1997 Proposal publication date: September 19, 1997 For further information, please call: (512) 463-6400 22 TAC sec.109.300 The State Board of Dental Examiners adopts new sec.109.300, concerning licensees filing with the State Board of Dental Examiners copies of specified contracts with changes to proposed text as published in the September 19, 1997, issue of the Texas Register (22 TexReg 9422). The new sec.109.300 provides that upon written request by the State Board of Dental Examiners, licensees having certain contracts with third parties will be required to provide copies of the contracts to the Board thereby assisting the Board in its efforts to assure that the citizens of Texas have high quality dental care. The new sec.109.300 is intended to implement the provisions of Article 4548k which provides that the Board may require dentists who contract with certain entities to provide to the Board copies of those contracts. The Dental Practice Act at Article 4551a(8) provides that any person who controls or influences or attempts to control or influence or otherwise interfere with a dentist independent professional judgment is practicing dentistry. Contracts which go beyond legitimate management or third party payor agreements may have such effect. The rule and statute will allow the Board to review contracts to determine if they have such impact. Changes from the rule as published are intended to clarify the rule. Subsections (a) is changed by deleting the word "allows" and inserting the term "may allow" to avoid the appearance that by rule the Board is defining certain contracts as creating influence or control that would be in violation of law. Also, paragraph (4) of subsection (a) is changed by dropping the word "any" and by changing the word "documentations" to "documentation" to clarify the meaning of the paragraph. 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 4543sec.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 4548k which provides that the board may require licensees to provide copies of contracts. sec.109.300.Providing Copies of Certain Contracts. (a) For purposes of this rule, dentists or dental organizations that contract with any entity providing management services, or paying all or part of any patient charges pursuant to any kind of agreement with a dentist or dental organization, has a contract that may allow that entity to influence or control business or professional aspects of dental services. (b) Dentists or dental organizations having such contracts, upon written request by the State Board of Dental Examiners, must, within fourteen (14) days of receipt of the request, provide copies as requested to the State Board of Dental Examiners of any of the following: (1) all documents that constitute the contract, and all documents referenced by the contract, including all amendments and addenda; (2) billing statements sent to patients and third party payors; (3) information sent to patients concerning services rendered and concerning the right, if any, for the contracting entity to bill and collect fees for dental services; and (4) copies of documentation, if any, offered by or required of the contracting entity to potential investors in the entity. 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 November 13, 1997. TRD-9715264 Douglas A. Beran, Ph.D. Executive Director State Board of Dental Examiners Effective date: December 3, 1997 Proposal publication date: September 19, 1997 For further information, please call: (512) 463-6400 CHAPTER 114.Extension of Duties of Auxiliary Personnel Dental Assistants 22 TAC sec.114.1 The State Board of Dental Examiners adopts amendments to sec.114.1, concerning permitted duties for dental assistants without changes to proposed text as published in the September 19, 1997, issue of the Texas Register (22 TexReg 9422). The amended sec.114.1 ensures that dental assistants provide dental care services under the supervision of the employer dentist who is present in the office. The amended sec.114.1 is intended to make it clear that a dentist who has responsibility for acts of a dental assistant must be in the dental office when delegated acts are performed. No comments were received regarding adoption of the amended rule. The amended rule is adopted under Texas Government Code sec.2001.021 et. seq; Texas Civil Statutes, Article 4543sec.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 4551e-1 which provides that a dental assistant performing delegated acts must be supervised by a dentist who is present in the dental office. 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 November 13, 1997. TRD-9715265 Douglas A. Beran, Ph.D. Executive Director State Board of Dental Examiners Effective date: December 3, 1997 Proposal publication date: September 19, 1997 For further information, please call: (512) 463-6400 CHAPTER 116.Dental Laboratories 22 TAC sec.116.3 The State Board of Dental Examiners adopts amendments to sec.116.3, concerning requirements for dental laboratories without changes to proposed text as published in the September 19, 1997, issue of the Texas Register (22 TexReg 9423). The amended sec.116.3 ensures that changes in ownership of dental laboratories must be reported to the State Board of Dental Examiners. The amended sec.116.3 is intended to implement a change in Article 4550, Sec. 1 (2), which added a requirement that any change of an owner of a laboratory be reported to the Board. The rule now requires that changes in ownership be reported. The Texas Dental Laboratory Association in its October 20, 1997 letter commented that the language may not be sufficient to cover all types of ownership. The Association's comments at least in part were likely occasioned by concerns that ownership interests have not been reported to the Board in the past and owners may not know how to report their interests. All dental laboratories must renew registrations by January 1, 1998 for the 1998 calendar year. A new registration form to be mailed to all laboratories in November 1997 requires that all ownership interests in a laboratory be reported. The amended rule requires that in any change in ownership as reported be filed with the Board. The Association asked whether 4551f Sec. 8(g), which provides that the Board may sanction any laboratory owner for violations of the Dental Practice Act if the owner holds 20% or more of the ownership interest, would apply to this rule. This rule addresses reporting requirements as set forth in Article 4550 Sec. 1 and is not intended to address Article 4551e (f); other rules do. The Association did not request any specific language changes, but suggested that the rule should be clear and specific. The Board has not recommended changes to published language as changes in ownership interests, as reported to the Board in renewal forms, must be reported. The amended rule is adopted under Texas Government Code sec.2001.021 et. seq; Texas Civil Statutes, Article 4543sec.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 4550 sec.1(2) which now requires that changes in laboratory ownership be reported to the board. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 13, 1997. TRD-9715266 Douglas A. Beran, Ph.D. Executive Director State Board of Dental Examiners Effective date: December 3, 1997 Proposal publication date: September 19, 1997 For further information, please call: (512) 463-6400 CHAPTER 117.Faculty-Students in Accredited Dental Schools 22 TAC sec.117.1 The State Board of Dental Examiners adopts amendments to sec.117.1, concerning exemptions to the definition of dentistry without changes to proposed text as published in the September 19, 1997, issue of the Texas Register (22 TexReg 9423). The amended sec.117.1 ensures that faculty members of dental hygiene schools will have the same exemption to the Dental Practice Act as faculty members of dental schools. The amended sec.117.1 is intended to implement an amendment to Article 4551b(1) which now provides an exemption to the Dental Practice Act for faculty members of dental hygiene schools as well as faculty of dental schools. The Dental Hygiene Advisory Committee at its September 19, 1997, meeting commented in favor of the rule as amended. The amended rule is adopted under Texas Government Code sec.2001.021 et.seq; Texas Civil Statutes, Article 4543sec.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 4551bsec.1 which now provides that faculty of dental hygiene schools are exempt under the Dental Practice Act. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 13, 1997. TRD-9715267 Douglas A. Beran, Ph.D. Executive Director State Board of Dental Examiners Effective date: December 3, 1997 Proposal publication date: September 19, 1997 For further information, please call: (512) 463-6400 PART XXIII. Texas Real Estate Commission CHAPTER 535.Provisions of the Real Estate License Act Licensed Real Estate Inspectors 22 TAC sec.535.212 The Texas Real Estate Commission (TREC) adopts an amendment to sec.535.212, concerning education and experience requirements for an inspector license, without changes to the proposed text as published in the October 3, 1997, issue of the Texas Register (22 TexReg 9800). The amendment permits a person applying for a real estate inspector license or for a professional inspector license to substitute additional education or experience in lieu of the statutory requirements of having first been licensed as an apprentice inspector or real estate inspector and having performed inspections under the supervision of a professional inspector or a real estate inspector. Adoption of the amendment is necessary for TREC to comply with Senate Bill 1100, 75th Legislature (1997). A comment opposing the adoption of the amendment was received from the Texas Association of Real Estate Inspectors (TAREI). TAREI opposed the amendment as unwarranted and detrimental to the level of quality of inspectors and to the interests of consumers. The Texas Real Estate Commission determined that it was required to adopt the rule by Senate Bill 1100 and did not concur with TAREI's comment. Inspectors who qualify under the section will still be subject to the education and examination requirements previously in place. TAREI also suggested that the amendment should be modified to require an applicant to demonstrate that the applicant had made a considerable effort to obtain a sponsor before being licensed under the section, and that all applications substituting additional experience or education be reviewed by either the Texas Real Estate Inspector Committee or a special review committee made up of licensed inspectors appointed by TREC. The commission determined that the suggested revisions were inappropriate given the directive in Senate Bill 1100 for TREC to permit applicants to substitute additional experience or education for the requirements of having been licensed and having performed inspections under supervision of another inspector. The amendment is adopted under Texas Civil Statutes, Article 6573a, sec.5(h), which authorize the Texas Real Estate Commission to make and enforce all rules and regulations necessary for the performance of its 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 November 7, 1997. TRD-9715060 Mark A. Moseley General Counsel Texas Real Estate Commission Effective date: December 1,1997 Proposal publication date: October 3, 1997 For further information, please call: (512) 465-3900 Registration of Easement or Right-of-Way Agents 22 TAC sec.sec.535.400-535.402 The Texas Real Estate Commission (TREC) adopts new sec.sec.535.400-535.402, concerning registration of easement or right-of-way agents, without changes to the proposed text as published in the October 3, 1997, issue of the Texas Register (22 TexReg 9801). The new sections implement Senate Bill 577, 75th Legislature (1997), which requires a person not licensed as a real estate broker or salesperson or exempt from the law to register with TREC to engage in the business of selling, buying, leasing, or transferring an easement or right-of- way, for another and for compensation, for use in connection with telecommunication, utility, railroad, or pipeline service. The sections establish procedures for processing applications and complaints against registrants and adopt by reference forms to be used by applicants and registrants. New sec.535.400 adopts by reference application forms and establishes a procedure for TREC to follow in processing applications for registration of individuals or businesses. Under the new section TREC will issue a registration certificate to each registrant for display in the registrant's place of business. The section also establishes grounds for disapproving an application for registration and provides for a hearing on the application if the applicant has complied with the statutory requirement for requesting a hearing. New sec.535.401 adopts two notices by reference. Registrants will be required to display Form ERW 3-0, Registrant's Office Notice, in the registrant's office; the notice contains information about a recovery fund administered by TREC and provides information to assist consumers in contacting TREC for information. Under the new section, registrants will be required to provide Form ERW 4-0, Notice Regarding Easements and Rights-of-Way, to a party other than the party the registrant is representing in a transaction. The notice contains information about the registrant and the party's right to be represented by an attorney or real estate broker. New sec.535.402 establishes procedures for the investigation of complaints against registrants and provides additional grounds for suspending or revoking a registration. The section also provides for appeals from disciplinary orders against registrants. Adoption of the new sections is necessary for TREC to administer the registration program created by Senate Bill 577. Written comments in opposition to the proposed new sections were received from the American Association of Professional Landmen, the Houston Association of Professional Landmen, the Texas Chemical Council, the Texas Oil and Gas Association (TxOGA), the Tulsa Association of Petroleum Landmen, the author and sponsors of Senate Bill 577, and from oil and gas companies, landmen and other interested persons. At a public hearing in Austin on November 3, 1997, TREC received oral comments in opposition to the proposed new sections from TxOGA, the author of Senate Bill 577, independent landmen, and representatives from businesses in the oil and gas industry. Oral comments in support of the proposed new sections were received from the Texas Association of Realtors (TAR). Commenters generally questioned the authority of TREC to disapprove registration applications or to inquire into prior conduct in violation of the law, criminal convictions, civil suits or unsatisfied judgments which might be the basis for a decision to disapprove an application. The commenters urged TREC to implement a registration process that required all applicants to be registered if they completed the application forms and paid the filing fees. TAR supported the sections as proposed. The commission determined that Section 10 of The Real Estate License Act, Texas Civil Statutes, Article 6573a, authorized the commission to disapprove applications and that the grounds for disapproval recited in the proposed section were appropriate and necessary. In response to comments suggesting revision of the questions asked in the applications for registration, form ERW 1-0 and form ERW 2-0, the commission revised the question relating to civil suits and judgments to inquire only about suits and judgments related to easement and right- of-way transactions in Texas and revised the question relating to prior conduct in violation of the law to focus on the period after January 1, 1998, the effective date of the criminal provisions of Senate Bill 577. The commission also concurred with a suggestion to eliminate the identification of business owners in the application to register a business entity, since the application identifies an officer or manager of the business. The commission also concurred with suggested changes to the certification provisions of the applications; the final versions of the application forms eliminated an erroneous reference to residency, clarified that the investigation of the applicant is limited to matters reasonably necessary to confirm satisfaction of the requirements for registration, and clarified that the applicant certifies the applicant will not perform an act for which registration is required prior to being registered. Commenters also urged the elimination of a question relating to the ethnicity of the applicant, questions relating to complaints and other regulatory actions taken by TREC against the applicant, and questions relating to pending criminal charges as being unnecessary. The commission determined that the questions were necessary to identify the applicant and obtain material information about possible violations of the law affecting the registration. Commenters urged the commission to modify sec.535.400 to deem an applicant registered if the commission does not request additional information within 10 days after receiving the application for registration. The commission determined it should act affirmatively to issue a registration as contemplated in the law. Commenters also urged the commission to issue registrations valid for two years rather than one. The commission determined that until the volume of anticipated renewals could be shown, an annual renewal process allowed the commission greater flexibility in creating a renewal process. Several comments addressed form ERW 4-0, Notice Regarding Easements and Rights- of- Way, which a registrant is required to provide to a party other than the party the registrant is representing in a transaction. As proposed, the notice contained information about the registrant and a statement that the party was entitled to be represented by an attorney or real estate broker. In response to a comment that the language in the law did not create an entitlement, the commission revised the language to show that the party had a right to be represented. Commenters also suggested that language in the notice as to the possible effect of an easement on the value of the property was unclear since the easement might decrease, increase or have no effect on value. The commission determined that the language used in the notice regarding effect on value was consistent with the statutory provision and declined to make the change. Another commenter urged the commission to clarify language in the notice that could be read to create a condition rather than a time for the notice to be given. The commission determined that the notice complied with the statute and declined to make the change. Other comments addressed whether the disciplinary provision in sec.535.402 for failure to provide documents, books, or records in a registrant's possession in connection with the investigation of a complaint of the registrant should exclude proprietary information or privileged matters. The commission determined that it was unnecessary to address these issues in the rule, as they may be asserted as defenses if a demand for the records is made. Comments also addressed the applicability of the law to employees acting in the due course of their employment, the attorney-in-fact exemption contained in the law, and other issues which were not part of the proposed sections. The commission determined that no change in the proposed sections was appropriate for these matters, but did vote to request an opinion from the Attorney General of Texas on the applicability of the law. Other comments suggested changes to the enabling legislation, such as an exemption for certified professional landmen or lowered filing fees, which were beyond the scope of the proposed sections. The new sections are adopted under Texas Civil Statutes, Article 6573a, sec.5(h), which authorize the Texas Real Estate Commission to make and enforce all rules and regulations necessary for the performance of its 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 November 7, 1997. TRD-9715061 Mark A. Moseley General Counsel Texas Real Estate Commission Effective date: December 1,1997 Proposal publication date: October 3, 1997 For further information, please call: (512) 465-3900 TITLE 28. INSURANCE PART I. Texas Department of Insurance CHAPTER 11. Health Maintenance Organizations SUBCHAPTER D. Regulatory Requirements for an HMO Subsequent to Issuance of a Certificate of Authority 28 TAC sec.11.305 The Commissioner of Insurance adopts the repeal of sec.sec.11.305; 11.901; 11.1103; 11.1500-11.1502; and 11.1601-11.1603, concerning health maintenance organizations, without changes to the proposed text as published in the August 19, 1997, issue of the Texas Register (22 TexReg 7983). Section 11.1600 is not repealed. The repeal of these sections is necessary because the sections are no longer necessary because of changes to the regulation of HMOs enacted by the 75th Legislature. Section 11.305 (relating to Site Visits) is no longer necessary because provisions related to site visits are covered in other sections of the HMO rules. Section 11.901 (relating to Health Department May Request Additional Information or Make Additional Requirements) is no longer necessary because new amendments to Insurance Code, Article 20A.05 enacted by the 75th Legislature in Senate Bill 385 remove the responsibilities of the Texas Department of Health regarding the certification and regulation of HMOs. Sections 11.1103 (relating to Continuity of Treatment Agreements), 11.1500 (relating to Retaliation), 11.1501 (relating to Prohibited Payments), 11.1502 (relating to Indemnification of HMO), 11.1601 (relating to Admissions and Termination of Physicians and Providers), 11.1602 (relating to Primary Care Selection), and 11.1603 (relating to Capitation) are no longer necessary because these sections have been enacted in substance, with or without changes, by the 75th Legislature in Senate Bill 385. The repeal of these sections will eliminate sections which are no longer necessary. sec.11.1600. Comment: One commenter states that if sec.11.1600 is repealed there will be no provisions which set forth what the "commissioner prescribes" for prospective enrollee materials. Section 11 of Senate Bill 385 mandates that current and prospective enrollees be given an accurate written description of plan terms and conditions including a current list of physicians and providers. The statute further provides that it is acceptable for an HMO to provide its member handbook and provider directory in satisfaction of this requirement if these materials contain the same level of disclosure as the written description "prescribed by the commissioner." The commenter recommends that sec.11.1600 not be repealed but rather amended as follows: (1) Remove the requirement that the 12 items be "in the same order" as listed in the rules; (2) Remove the "upon request" language and replace with language which states that the HMO must make the accurate written description "available" to current and prospective group contract holders and current and prospective enrollees; (3) Amend sec.11.1600(3) to read: " a summary of all covered services . . .;" (4) Amend sec.11.1600(7) to read: "a summary of any limitations and exclusions." Response: The department agrees that sec.11.1600 should not be repealed so that the 12 items will remain. The department agrees that the requirement that the 12 items be "in the same order" as listed in the rules should be deleted. The department disagrees that the rule should be amended to require only a "summary of all covered services" and a "summary of any limitations and exclusions." The department believes that summaries do not provide current and prospective enrollees with sufficient information about covered services and limitations and exclusions. Since sec.11.1600 was not proposed to be amended in this proposal, the department will submit a proposed amendment in a separate set of rules. Harris Methodist Health Plan - against the repeal of sec.11.1600. The repeal is adopted under the Insurance Code, Articles 20A.22 and 1.03A. Article 20A.22 provides that the Commissioner of Insurance may promulgate such reasonable rules and regulations as are necessary and proper to carry out the provisions of the Health Maintenance Organization Act. Article 1.03A provides that the Commissioner of Insurance may adopt rules and regulations to execute the duties and functions of the Texas Department of Insurance only as authorized by a statute. 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 November 14, 1997. TRD-9715450 Caroline Scott General Counsel and Chief Clerk Texas Department of Insurance Effective date: December 8, 1997 Proposal publication date: August 19, 1997 For further information, please call: (512) 463-6327 SUBCHAPTER J. Requirement of the Texas Department of Health 28 TAC sec.11.901 The repeal is adopted under the Insurance Code, Chapter 20A (as amended by the 75th Legislature in Senate Bill 385) and Article 1.03A. Insurance Code, Article 20A.22(a) provides that the commissioner may promulgate rules and regulations as are necessary and proper to carry out the provisions of the HMO Act (Insurance Code, Chapter 20A). Article 20A.22(b) provides, in part, that the commissioner is specifically authorized to promulgate rules to ensure that enrollees have adequate access to health care services and to establish mileage requirements for primary and specialty care and maximum travel times. Article 20A.04(b) provides that the commissioner may promulgate such reasonable rules and regulations as it deems necessary to the proper administration of the HMO Act to require a health maintenance organization, subsequent to receiving its certificate of authority, to submit the modifications or amendments to the operations or documents submitted upon application for a certificate of authority to the commissioner, either for his approval or for information only, prior to the effectuation of the modification or amendment or to require the health maintenance organization to indicate the modifications to the commissioner at the time of the next site visit or examination. Article 20A.05(b) sets forth the determinations the commissioner must make prior to granting a certificate of authority to an HMO. Article 20A.37 provides that the commissioner by rule may establish minimum standards and requirements for ongoing internal quality assurance programs for health maintenance organizations, including but not limited to standards for assuring availability, accessibility, quality, and continuity of care. Article 1.03A provides that the Commissioner of Insurance may adopt rules necessary for the conduct and execution of the duties and functions of the Texas Department of Insurance only as authorized by a statute. 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 November 14, 1997. TRD-9715451 Caroline Scott General Counsel and Chief Clerk Texas Department of Insurance Effective date: December 8, 1997 Proposal publication date: August 19, 1997 For further information, please call: (512) 463-6327 SUBCHAPTER L. Standard Language for Mandatory and Other Provisions 28 TAC sec.11.1103 The repeal is adopted under the Insurance Code, Articles 20A.22 and 1.03A. Article 20A.22 provides that the Commissioner of Insurance may promulgate such reasonable rules and regulations as are necessary and proper to carry out the provisions of the Health Maintenance Organization Act. Article 1.03A provides that the Commissioner of Insurance may adopt rules and regulations to execute the duties and functions of the Texas Department of Insurance only as authorized by a statute. 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 November 14, 1997. TRD-9715452 Caroline Scott General Counsel and Chief Clerk Texas Department of Insurance Effective date: December 8, 1997 Proposal publication date: August 19, 1997 For further information, please call: (512) 463-6327 SUBCHAPTER P. Prohibited Practices 28 TAC sec.sec.11.1500-11.1502 The repeals are adopted under the Insurance Code, Articles 20A.22 and 1.03A. Article 20A.22 provides that the Commissioner of Insurance may promulgate such reasonable rules and regulations as are necessary and proper to carry out the provisions of the Health Maintenance Organization Act. Article 1.03A provides that the Commissioner of Insurance may adopt rules and regulations to execute the duties and functions of the Texas Department of Insurance only as authorized by a statute. 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 November 14, 1997. TRD-9715453 Caroline Scott General Counsel and Chief Clerk Texas Department of Insurance Effective date: December 8, 1997 Proposal publication date: August 19, 1997 For further information, please call: (512) 463-6327 SUBCHAPTER Q. Other Requirements 28 TAC sec.sec.11.1600-11.1603 The repeals are adopted under the Insurance Code, Articles 20A.22 and 1.03A. Article 20A.22 provides that the Commissioner of Insurance may promulgate such reasonable rules and regulations as are necessary and proper to carry out the provisions of the Health Maintenance Organization Act. Article 1.03A provides that the Commissioner of Insurance may adopt rules and regulations to execute the duties and functions of the Texas Department of Insurance only as authorized by a statute. 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 November 14, 1997. TRD-9715454 Caroline Scott General Counsel and Chief Clerk Texas Department of Insurance Effective date: December 8, 1997 Proposal publication date: August 19, 1997 For further information, please call: (512) 463-6327 CHAPTER 11. Health Maintenance Organizations The Commissioner of Insurance adopts amendments and new sections to Chapter 11, concerning health maintenance organizations, by amending sec.sec.11.1-11.2, 11.203-11.206, 11.301, 11.303-11.304, 11.306, 11.1102, 11.1604 and adding sec.11.1606, Subchapter T, sec.sec.11.1901-11.1903 and Subchapter U, sec.sec.11.2001-11.2006. Sections 11.1, 11.2, 11.203, 11.204, 11.206, 11.301, 11.303, 11.306, 11.1102, 11.1604, 11.1606, 11.1901-11.1903, and 11.2001-11.2004 and 11.2006 are adopted without changes to the proposed text as published in the August 19, 1997 issue of the Texas Register (22 TexReg 7985) and will not be republished. Sections 11.205, 11.304 and 11.2005 are adopted with changes. The amendments to these sections and new sections are necessary to implement legislation enacted by the 75th Legislature in Senate Bill 385 and to delete unnecessary provisions which are codified in the Insurance Code, Chapter 20A. Senate Bill 385, in part, established the transfer of health maintenance organization quality of care regulation from the Texas Board of Health to the Commissioner of Insurance and codified patient protection rules adopted by the Commissioner of Insurance and Texas Board of Health in accordance with the Governor's veto proclamation message of the Patient Protection Act of 1995. Parts of sections adopted by the Texas Board of Health, at Title 25, Chapter 119 of this code (relating to health maintenance organization rules of the Texas Department of Health) are adopted as amendments and new sections to Chapter 11 of this title with changes to facilitate ease of administration and readability. These amendments and new sections provide for the transfer of health maintenance organization quality of care regulation from the Texas Board of Health to the Commissioner of Insurance. In addition, the proposal deletes parts of sections which are now codified. Simultaneous to this adoption of amendments and new sections to Chapter 11, the department is adopting the repeal of sec.sec.11.305, 11.901, 11.1103, 11.1500-11.1502 and 11.1601-11.1603. Notice of the adoption of the repeal is published elsewhere in this issue of the Texas Register. Section 11.205(2) was amended to add the word "minutes" after the phrase "medical peer review committee" to clarify that minutes of the medical peer review committee are to be available to the department during an examination, rather than the medical peer review committee. Section 11.304(a) was amended to change the name of the Financial Analysis Unit of the department to the Financial Monitoring Division. Section 11.2005(3)(8)(iii) was deleted because pharmacists are already required by the Texas Board of Pharmacy to provide patient counseling and provision of drug information and to review a patient's medication record for the purpose of promoting therapeutic appropriateness at the time of dispensing a prescription drug order. Sections 11.1(2) and (3), 11.203-11.205, 11.303 and 11.304 delete references to the State Board of Insurance and Texas Department of Health, as appropriate. Section 11.1 deletes paragraph (4) (relating to Cause of Action) because sections referenced in sec.11.1(4) are adopted as deletions or repeals. Section 11.2(b)(9), (12), (15), (22), (24)-(27), (31) and (34) incorporate definitions of credentials, general hospital, pathology services, psychiatric hospital, quality improvement, reference laboratory, reference laboratory specimen procurement services, referral specialists, special hospital, and utilization review, respectively, adopted by the Texas Board of Health under sec.119.1 of Title 25 of this code (relating to health maintenance organization rules). Section 11.2 deletes paragraphs (6), (11), (14), (16), (20), and (24)-(26), definitions of capitation, emergency care, HMO delivery network, person, physician, prospective enrollee, provider, and provider HMO, respectively, because these definitions are codified under Insurance Code, Article 20A.02 and no longer necessary. Section 11.204 makes conforming language changes in accordance with Senate Bill 385 in paragraphs (17)-(20). Section 11.205 adds a list of documents which, under Texas Department of Health rules, must be available for inspection at the time of an examination at HMO administrative offices, and deletes existing language which is not in accordance with Texas Department of Health rules. Section 11.206 deletes unnecessary language to conform with implementation of Senate Bill 385. Sections 11.301 and 11.303 make conforming changes necessary to implement Senate Bill 385. Section 11.303 also incorporates, in part, rules relating to health maintenance organizations adopted by the Texas Board of Health under sec.119.3 of Title 25 of this code. Section 11.304 makes conforming changes necessary to establish transfer of regulatory oversight from the Texas Board of Health to the Commissioner of Insurance and from the Texas Department of Insurance to the comptroller concerning premium and maintenance tax matters. Section 11.306 deletes reference to the State Board of Insurance. Section 11.1102 makes a conforming change to reflect a change in the citation for the definition of "uncovered expenses" in Senate Bill 385. Section 11.1604 makes conforming changes to establish removal of the authority of the Texas Department of Health. Several Texas Department of Health rules, located in Title 25 of this code, have been adopted in these sections to promote continuity of regulation of the quality of care function. This adoption incorporates the majority of the language of these Texas Department of Health rules with some changes regarding the quality of care function as follows: sec.119.21 is adopted sec.11.1606, sec.119.22 is adopted sec.11.1901, sec.119.23 is adopted sec.11.1902, sec.119.24 is adopted sec.11.1903, sec.119.51 is adopted sec.11.2001, sec.119.52 is adopted sec.11.2003, sec.119.53 is adopted sec.11.2003, sec.119.54 is adopted sec.11.2004, sec.119.55 is adopted sec.11.2005, and sec.119.56 is adopted sec.11.2006. Changes appropriate to incorporate Senate Bill 385 and transfer the function to the Texas Department Insurance have been made to the Texas Department of Health rules to comply with the statute. sec.11.204(13)(B) Comment: A commenter questions whether a copy of all subcontracts (regardless of the number of contracting tiers involved) must be provided to the department. The commenter also questions whether the term "subcontract" includes a copy of the employment agreement that may be used by a medical group in compensating physicians who are employees. In addition, the commenter questions whether the department intends to require that any changes in these "subcontracts" be filed for information subsequent to the issuance of the certificate of authority. The commenter states that "provider to provider" contractual arrangements are proprietary in nature and outside the department's regulatory authority. Response: As required by sec.11.204(13)(B), a sample copy of the subcontract between the medical group, physician's association, any physician, a provider who has contracted with any physician, medical group, association of physicians, or any other provider to provide health care services must be filed with the department. A copy of the employment agreement that is used by a medical group in compensating physicians who are employees is not required to be filed. Section 11.301(5)(F) requires that deletions and modifications to a copy of the form of any new contract or any substantive changes in previously filed copies of forms of all contracts between the HMO and any physician or other providers as described in sec.11.204(13)(B) be filed within 30 days of the effective date of the contract change. The department disagrees with the comment that "provider to provider" contractual arrangements are proprietary in nature and outside the department's regulatory authority. Articles 20A.02(n), 20A.06(a)(3), 20A.22(a), and 20A.26(f)(5) - (9), Insurance Code, authorize the department to require that contracts within the HMO delivery network be filed with the department. sec.11.1606(e)(4) Comment: One commenter agrees that documentation on subcontracting physicians and providers which contains "sufficient information to assure current licensure" is very important. The commenter suggests modification of the provision to require documentation that the HMO has verified current licensure with the source agency. The commenter states that paper documents are susceptible to alteration, falsification and/or tampering, whereas direct verification by the HMO via direct electronic means protects the integrity of the licensing information. Response: The department agrees with the comment that documentation on subcontracting physicians and providers which contain sufficient information to assure current licensure is very important. The department does not interpret sec.11.1606(e)(4) to require a copy of the paper licenses. HMOs may verify current licensure through the Texas Board of Medical Examiners via direct electronic means. However, the department will require written verification of current licensure. sec.11.1606(f)-(i) Comment: One commenter expresses concern that an HMO which serves a predominately rural service area would have difficulty meeting the requirements of sec.11.1606(f) and (g) for the following reasons: (1) There are many rural areas within a service area which have no primary care or specialist care physicians or hospital or ancillary facilities available to provide services within required mileage limits; and (2) In many rural areas of the service area, although physicians, hospitals and ancillary facilities may be available, all or a part of the physicians, hospitals and ancillary facilities cannot meet minimum statutory quality of care and credentialing requirements for purposes of assuring quality health care services to enrollees. The commenter states that sec.11.1606(h) does not provide adequate guidance and assurance to a rural HMO in attempting to address unavailability of healthcare providers and services. The commenter has suggested specific language to address the following issues: (1) There is no statement that some type of exemption waiver, exception, or provider services flexibility will be authorized to the HMO; (2) The language "Healthcare utilization data which indicates a normal pattern for securing healthcare services within the service area" is unclear; (3) In many cases data is unavailable as to healthcare utilization in rural areas and such utilization data can only be determined based on continuing efforts of the HMO to develop its provider network and provide its plans in rural areas. The commenter believes the suggested language will provide assurance to HMOs that have provider and service availability problems that plans for services will meet department expectations as well as allow the department to properly assess the needs of enrollees in underserved areas. Response: The commenter raises many valid concerns with regard to HMOs serving predominantly rural service areas. The department disagrees that subsection (h) does not indicate that a waiver, exception or provider services flexibility will be authorized to the HMO. Subsection (h) indicates that if any service or provider is not available to an enrollee within the mileage radii specified in subsections (f) and (g), the HMO shall submit to the department for approval utilization data which indicates a normal pattern for securing healthcare services within the service area. The department has and will continue to approve exceptions to the radii specified in subsections (f) and (g). The department understands that the phrase "healthcare utlilization data which indicates a normal pattern for securing healthcare services within the service area" could be construed to be unclear. The department believes, however, that since circumstances vary widely in rural areas of the State, the language in this section should remain flexible. The department recognizes that collection of data in rural areas may be more difficult than in urban areas and agrees that utilization data can only be determined based on continuing efforts of the HMO to develop its provider network and provide its plans in rural areas. The commenter suggests eight specific items that an HMO should submit to the department in seeking approval under subsection (h). These eight items are already required by the department to be submitted with a request for approval under subsection (h). The department is currently reviewing these requirements in light of Senate Bill 1246 and will continue to evaluate these concerns and comments for additional rules to be proposed in the future. sec.11.1902(3) (B) Comment: A commenter requests a definition of "home and community support service agency" as used in sec.11.1902(3)(B). Response: "Home and community support service agency" is defined in the Health & Safety Code, sec.142.001(10) as "a person who provides home, health, hospice, or personal assistance services for pay or other consideration in a client's residence, an independent living environment, or another appropriate location." The department does not believe it is necessary to repeat the definition in these rules. sec.11.1903(2)(A)(l) Comment: A commenter requests clarification of the term and definition of "response time for post-stabilization treatment" as used in sec.11.1903(2)(A)(l). Response: The requirements for response time for post-stabilization treatment are contained in sec.11.204(20(C) and require HMOs to approve or deny coverage of post-stabilization care to the circumstances relating to the delivery of the service and the condition of the patient, but in no case to exceed one hour from the time of the request. sec.11.2005(3)(B)(iii) Comment: A commenter states policies and guidelines under which pharmacists provide patient instruction and education are already regulated by OBRA and, therefore, there is no apparent need for the Quality Improvement Committee of a health plan to make such recommendations as required under sec.11.2005(3)(B)(iii). Response: The Omnibus Budget Reconciliation Act (OBRA) does require patient instruction and education for Medicare prescriptions. In addition, the Texas Board of Pharmacy requires that pharmacists provide patient counseling and provision of drug information. (22 TAC sec.291.33(c)(1)) Pharmacists also are required to review the patient's medication record for the purpose of promoting therapeutic appropriateness at the time of dispensing a prescription drug order. (22 TAC sec.291.33(c)(2)) The department agrees that there is no need for such quality improvement committee of a health plan to make recommendations on policies under which pharmacists provide patient information and education on correct use of medications since pharmacists are already under an obligation to provide such information and education. Therefore, the department is deleting this clause. Senate Bill 385 - A commenter suggests that rules be adopted on Sections 9, 11B, 12, and 19 of Senate Bill 385. Comment: A commenter states that the proposed rules do not include guidelines/rules to implement Section 11B of Senate Bill 385, which mandates that a special disclosure be made to prospective Medicare enrollees and provides that the form of the disclosure is to be adopted by the commissioner. A commenter requests clarification whether the specific rehabilitation benefits required under Section 9 of Senate Bill 385 prohibits such rehabilitation services from the preauthorization requirement, which could include a medical necessity review by the HMO medical director. A commenter requests clarification concerning what limitation the commissioner may prescribe with regard to the statutory provision "a health maintenance organization that offers a basic health care plan shall provide or arrange for the provision of basic health care services to its enrollees as needed and without limitations as to time and cost other than limitations prescribed by rule of the commissioner." The commenter presumes this means HMOs must provide basic health care services without limitation for such things as "work related injuries." Response: The proposed rules do not address the provisions of SB 385 concerning Medicare enrollees, rehabilitation benefits, or the definition of basic health care services. These provisions will be addressed in another set of rules implementing SB 385, which the department will be proposing. Comment: A commenter complains that Section 12 of Senate Bill 385 removes any flexibility of the HMO to extend the 30 day time frame for resolution of a complaint. The commenter states that there will be circumstances outside of the HMO's control which cannot be avoided, such as delays in obtaining medical records and other information from physicians. Under these circumstances, failure to provide some flexibility in the 30 day response time will virtually guarantee that HMOs cannot respond within the required time, therefore, forcing the HMO to be out of compliance with the statute. Response: The new statutory provisions of Section 12 do not provide for additional extensions for resolution of complaints. The department interprets the new statutory provisions to require strict adherence to the timeframes set out in Section 12. Comment: A commenter requests clarification concerning Section 19 of Senate Bill 385, which provides that an HMO must require that physicians and providers post in their offices a notice to enrollees regarding the process to resolve complaints with the HMO and include the TDI toll free number for filing complaints. The commenter believes a single notice stating (1) that an HMO enrollee has the right to complain to the enrollee's HMO, and (2) providing the TDI toll free number should suffice. The commenter poses the following questions: Does this mean that a provider must have a separate notice for each HMO with whom the provider contracts? Where is a hospital's "office?" Would the notice be different for commercial members versus Medicare risk members where the specific steps in the complaint and appeals process may be slightly different? Response: The rule does not address the provisions of SB 385 concerning notice to enrollees regarding the process to resolve complaints with the HMO. This provision will be addressed in rules to be proposed in the future. The department will promulgate one notice form to be posted in physicians' and providers' offices. The department is evaluating additional requirements of Medicaid and Medicare with regard to this complaint notice and will determine the applicability of the notice requirement in rules to be proposed in the future. FOR with changes: Harris Methodist Health Plan and Health Partners HMO. SUBCHAPTER A. General Provisions 28 TAC sec.11.1, sec.11.2 The amendments are adopted under the Insurance Code, Chapter 20A (as amended by the 75th Legislature in Senate Bill 385) and Article 1.03A. Insurance Code, Article 20A.22(a) provides that the commissioner may promulgate rules and regulations as are necessary and proper to carry out the provisions of the HMO Act (Insurance Code, Chapter 20A). Article 20A.22(b) provides, in part, that the commissioner is specifically authorized to promulgate rules to ensure that enrollees have adequate access to health care services and to establish mileage requirements for primary and specialty care and maximum travel times. Article 20A.04(b) provides that the commissioner may promulgate such reasonable rules and regulations as it deems necessary to the proper administration of the HMO Act to require a health maintenance organization, subsequent to receiving its certificate of authority, to submit the modifications or amendments to the operations or documents submitted upon application for a certificate of authority to the commissioner, either for his approval or for information only, prior to the effectuation of the modification or amendment or to require the health maintenance organization to indicate the modifications to the commissioner at the time of the next site visit or examination. Article 20A.05(b) sets forth the determinations the commissioner must make prior to granting a certificate of authority to an HMO. Article 20A.37 provides that the commissioner by rule may establish minimum standards and requirements for ongoing internal quality assurance programs for health maintenance organizations, including but not limited to standards for assuring availability, accessibility, quality, and continuity of care. Article 1.03A provides that the Commissioner of Insurance may adopt rules necessary for the conduct and execution of the duties and functions of the Texas Department of Insurance only as authorized by a statute. 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 November 24, 1997. TRD-9715455 Caroline Scott General Counsel and Chief Clerk Texas Department of Insurance Effective date: December 8, 1997 Proposal publication date: August 19, 1997 For further information, please call: (512) 463-6327 SUBCHAPTER C. Application for Certificate of Authority 28 TAC sec.sec.11.203-11.206 The amendments are adopted under the Insurance Code, Chapter 20A (as amended by the 75th Legislature in Senate Bill 385) and Article 1.03A. Insurance Code, Article 20A.22(a) provides that the commissioner may promulgate rules and regulations as are necessary and proper to carry out the provisions of the HMO Act (Insurance Code, Chapter 20A). Article 20A.22(b) provides, in part, that the commissioner is specifically authorized to promulgate rules to ensure that enrollees have adequate access to health care services and to establish mileage requirements for primary and specialty care and maximum travel times. Article 20A.04(b) provides that the commissioner may promulgate such reasonable rules and regulations as it deems necessary to the proper administration of the HMO Act to require a health maintenance organization, subsequent to receiving its certificate of authority, to submit the modifications or amendments to the operations or documents submitted upon application for a certificate of authority to the commissioner, either for his approval or for information only, prior to the effectuation of the modification or amendment or to require the health maintenance organization to indicate the modifications to the commissioner at the time of the next site visit or examination. Article 20A.05(b) sets forth the determinations the commissioner must make prior to granting a certificate of authority to an HMO. Article 20A.37 provides that the commissioner by rule may establish minimum standards and requirements for ongoing internal quality assurance programs for health maintenance organizations, including but not limited to standards for assuring availability, accessibility, quality, and continuity of care. Article 1.03A provides that the Commissioner of Insurance may adopt rules necessary for the conduct and execution of the duties and functions of the Texas Department of Insurance only as authorized by a statute. sec.11.205. Documents to be Available During Examinations. The following documents must be available for inspection at the time of an examination at the HMO administrative offices: (1) the minutes of the HMO organizational meetings which indicate the type and date of each meeting, and the officer or officers who are responsible for the handling of the funds of the applicant; the minutes of meetings of the HMO board of directors; management committee minutes; administrative policy manuals; physician and provider manuals; enrollee information; enrollee newsletters; personnel manuals; organizational charts; contracts with physicians and, if applicable, providers such as dentists and physical therapists; and other items as required; (2) the quality improvement review standards, quality improvement committee meeting minutes, quality review audits, quality of care assurance program, medical peer review committee minutes, and utilization review system program description, including policies and procedures to evaluate medical necessity, criteria used, information sources, the process used to review and approve the provision of medical services and utilization review system data; (3) the complaint policy and procedure and forms to be used in the complaint resolution procedure for complaints. All complaints shall be processed in accordance with the HMO's complaint policy and procedure which shall be developed in accordance with the Insurance Code, Chapter 20A; (4) the accessibility monitoring data; (5) the enrollee satisfaction surveys and disenrollment logs; (6) medical, hospital and health records of all enrollees and records of all physicians, dentists and other providers providing service under independent contract with an HMO shall be subject to such examination as is necessary for an ongoing examination. The plan shall provide for adequate protection of confidentiality of medical and health care information and shall only be disclosed in accordance with applicable law; (7) network configuration information, including an explanation of the adequacy of the physician, dentist and other provider network configuration. The information provided must include the names of physicians, specialty physicians and other providers by zip code or zip code map and indicate whether each physician or other provider is accepting new patients from the HMO; (8) lists of primary care and specialty physicians, hospitals, laboratories, diagnostic imaging providers, radiologic oncology providers, and, if applicable, other providers such as dentists and physical therapists to be used by the applicant inside the service area: (A) the list of physicians must include current information for the following: (i) each physician's medical specialty; (ii) board certification, if any; (iii) Texas license number; (iv) federal and state permit numbers relating to registration of controlled substances, if applicable; (v) business address; (vi) hospitals and comparable facilities at which the physician has staff privileges; and (vii) whether or not the physician accepts new patients from the HMO; (B) the list of hospitals and comparable facilities must include: (i) each hospital's or facility's address; (ii) license number, unless exempt from licensure requirements; (iii) the number of licensed beds in the facility; (iv) the hospital's and facility's current occupancy rate; (v) indication of accreditation issued by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) or the American Osteopathic Association (AOA), if applicable; (vi) indication of Medicare certification (Title XVIII, Social Security Act), if applicable; and (vii) the trauma facility designation level and expiration date; and (C) the list of laboratories, diagnostic imaging providers, radiologic oncology providers, and, if applicable, other providers such as dentists and physical therapists must include each provider's address and license, accreditation, registration or certification, if applicable, and whether or not the provider accepts new patients from the HMO; (9) a copy of the contract with each physician and each provider such as dentists and physical therapists; (10) evidence that the HMO has a mechanism for maintaining, monitoring and implementing the quality improvement program, as required by sec.11.1902 of this title (relating to Quality Improvement Program) including procedures for data collection, analysis and reporting for all physicians and providers, including pharmacy or drug utilization review format, if applicable; utilization review; denials of coverage and a complaint system as required by this chapter; (11) an example of all printed materials to be presented to prospective enrollees, an enrollee handbook and evidence of coverage and physician and provider manuals; (12) the statistical reporting system developed and maintained by the HMO which allows for compiling, developing, evaluating, and reporting statistics relating to the cost of operation; the pattern of utilization of services; and the accessibility and availability of services; (13) the HMO's annual report and statement; (14) any report submitted by the HMO to the Texas Health Care Information Council; (15) a copy of all written complaints; (16) documentation of regular review by management and the governing body of complaint reports; (17) the complaint and appeal log, including documentation on each complaint received and details of action taken on the complaint. Complaints and appeals must be categorized as follows: (A) plan administration (e.g., marketing, policyholder service, billing, underwriting or similar administrative functions); (B) benefit denial or limitation (e.g., denial of a benefit, refusal to refer or provide requested services). The department will establish broad categories of medical conditions which an HMO must include on the complaint log; (C) quality of the treating physician, dentist or provider care (e.g., misdiagnoses or lack of courteous treatment); (D) enrollee services (e.g., lack of courteous treatment; appointment time or waiting room time); (18) access to appointments (e.g., appointment time or waiting room time); (19) financial records, including ledgers, checkbooks, inventory records, evidence of expenditures, investments and debts; and (20) any other records concerning the operation of the HMO. 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 November 24, 1997. TRD-9715456 Caroline Scott General Counsel and Chief Clerk Texas Department of Insurance Effective date: December 8, 1997 Proposal publication date: August 19, 1997 For further information, please call: (512) 463-6327 SUBCHAPTER D. Regulatory Requirements for an HMO Subsequent to Issuance of a Certificate of Authority 28 TAC sec.sec.11.301, 11.303, 11.304, 11.306 The amendments are adopted under the Insurance Code, Chapter 20A (as amended by the 75th Legislature in Senate Bill 385) and Article 1.03A. Insurance Code, Article 20A.22(a) provides that the commissioner may promulgate rules and regulations as are necessary and proper to carry out the provisions of the HMO Act (Insurance Code, Chapter 20A). Article 20A.22(b) provides, in part, that the commissioner is specifically authorized to promulgate rules to ensure that enrollees have adequate access to health care services and to establish mileage requirements for primary and specialty care and maximum travel times. Article 20A.04(b) provides that the commissioner may promulgate such reasonable rules and regulations as it deems necessary to the proper administration of the HMO Act to require a health maintenance organization, subsequent to receiving its certificate of authority, to submit the modifications or amendments to the operations or documents submitted upon application for a certificate of authority to the commissioner, either for his approval or for information only, prior to the effectuation of the modification or amendment or to require the health maintenance organization to indicate the modifications to the commissioner at the time of the next site visit or examination. Article 20A.05(b) sets forth the determinations the commissioner must make prior to granting a certificate of authority to an HMO. Article 20A.37 provides that the commissioner by rule may establish minimum standards and requirements for ongoing internal quality assurance programs for health maintenance organizations, including but not limited to standards for assuring availability, accessibility, quality, and continuity of care. Article 1.03A provides that the Commissioner of Insurance may adopt rules necessary for the conduct and execution of the duties and functions of the Texas Department of Insurance only as authorized by a statute. sec.11.304. Annual Reports, Other Reports, and Taxes. (a) Annual reports. (1) Annual statement. On or before March 1 of each year, each HMO must file the original of its annual statement with the Financial Monitoring Division of the Texas Department of Insurance. The annual statement must be on forms prescribed by the commissioner. This statement, covering the preceding calendar year, must be verified by at least two officers of the HMO and accompanied by the filing fees specified in Texas Insurance Code, Article 20A.32(b). (2) - (3) (No change.) (b) Other reports. (1) HMOs must file quarterly reports on forms prescribed by the commissioner within 45 days of the end of the quarter. (2) - (4) (No change.) (5) Subsequent to the issuance of a certificate of authority, on or before March 1 of each calendar year, each HMO must file two copies of an updated list of physicians and other providers, providing all information required in sec.11.205 of this title (relating to Documents to be Available During Examinations). One copy must be sent to the HMO/URA/QA Group. (c) Taxes. (1) Subject to the adjustments provided for by the Texas Insurance Code, Article 4.11, and by the Texas Insurance Code, Article 20A.32, each HMO must pay premium taxes to the comptroller pursuant to the Texas Insurance Code, Article 20A.33 and the rules and tax forms promulgated by the comptroller. (2) Each HMO must pay maintenance taxes to the comptroller pursuant to the Texas Insurance Code, Article 20A.33, and the rules and tax forms promulgated by the comptroller. 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 November 24, 1997. TRD-9715457 Caroline Scott General Counsel and Chief Clerk Texas Department of Insurance Effective date: December 8, 1997 Proposal publication date: August 19, 1997 For further information, please call: (512) 463-6327 SUBCHAPTER L. Standard Language for Mandatory and Other Provisions 28 TAC sec.11.1102 The amendment is adopted under the Insurance Code, Chapter 20A (as amended by the 75th Legislature in Senate Bill 385) and Article 1.03A. Insurance Code, Article 20A.22(a) provides that the commissioner may promulgate rules and regulations as are necessary and proper to carry out the provisions of the HMO Act (Insurance Code, Chapter 20A). Article 20A.22(b) provides, in part, that the commissioner is specifically authorized to promulgate rules to ensure that enrollees have adequate access to health care services and to establish mileage requirements for primary and specialty care and maximum travel times. Article 20A.04(b) provides that the commissioner may promulgate such reasonable rules and regulations as it deems necessary to the proper administration of the HMO Act to require a health maintenance organization, subsequent to receiving its certificate of authority, to submit the modifications or amendments to the operations or documents submitted upon application for a certificate of authority to the commissioner, either for his approval or for information only, prior to the effectuation of the modification or amendment or to require the health maintenance organization to indicate the modifications to the commissioner at the time of the next site visit or examination. Article 20A.05(b) sets forth the determinations the commissioner must make prior to granting a certificate of authority to an HMO. Article 20A.37 provides that the commissioner by rule may establish minimum standards and requirements for ongoing internal quality assurance programs for health maintenance organizations, including but not limited to standards for assuring availability, accessibility, quality, and continuity of care. Article 1.03A provides that the Commissioner of Insurance may adopt rules necessary for the conduct and execution of the duties and functions of the Texas Department of Insurance only as authorized by a statute. 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 November 24, 1997. TRD-9715458 Caroline Scott General Counsel and Chief Clerk Texas Department of Insurance Effective date: December 8, 1997 Proposal publication date: August 19, 1997 For further information, please call: (512) 463-6327 SUBCHAPTER Q. Other Requirements 28 TAC sec.11.1604, sec.11.1606 The amendment and new section are adopted under the Insurance Code, Chapter 20A (as amended by the 75th Legislature in Senate Bill 385) and Article 1.03A. Insurance Code, Article 20A.22(a) provides that the commissioner may promulgate rules and regulations as are necessary and proper to carry out the provisions of the HMO Act (Insurance Code, Chapter 20A). Article 20A.22(b) provides, in part, that the commissioner is specifically authorized to promulgate rules to ensure that enrollees have adequate access to health care services and to establish mileage requirements for primary and specialty care and maximum travel times. Article 20A.04(b) provides that the commissioner may promulgate such reasonable rules and regulations as it deems necessary to the proper administration of the HMO Act to require a health maintenance organization, subsequent to receiving its certificate of authority, to submit the modifications or amendments to the operations or documents submitted upon application for a certificate of authority to the commissioner, either for his approval or for information only, prior to the effectuation of the modification or amendment or to require the health maintenance organization to indicate the modifications to the commissioner at the time of the next site visit or examination. Article 20A.05(b) sets forth the determinations the commissioner must make prior to granting a certificate of authority to an HMO. Article 20A.37 provides that the commissioner by rule may establish minimum standards and requirements for ongoing internal quality assurance programs for health maintenance organizations, including but not limited to standards for assuring availability, accessibility, quality, and continuity of care. Article 1.03A provides that the Commissioner of Insurance may adopt rules necessary for the conduct and execution of the duties and functions of the Texas Department of Insurance only as authorized by a statute. 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 November 24, 1997. TRD-9715459 Caroline Scott General Counsel and Chief Clerk Texas Department of Insurance Effective date: December 8, 1997 Proposal publication date: August 19, 1997 For further information, please call: (512) 463-6327 SUBCHAPTER T. Quality of Care 28 TAC sec.sec.11.1901-11.1903 The amendments and new sections are adopted under the Insurance Code, Chapter 20A (as amended by the 75th Legislature in Senate Bill 385) and Article 1.03A. Insurance Code, Article 20A.22(a) provides that the commissioner may promulgate rules and regulations as are necessary and proper to carry out the provisions of the HMO Act (Insurance Code, Chapter 20A). Article 20A.22(b) provides, in part, that the commissioner is specifically authorized to promulgate rules to ensure that enrollees have adequate access to health care services and to establish mileage requirements for primary and specialty care and maximum travel times. Article 20A.04(b) provides that the commissioner may promulgate such reasonable rules and regulations as it deems necessary to the proper administration of the HMO Act to require a health maintenance organization, subsequent to receiving its certificate of authority, to submit the modifications or amendments to the operations or documents submitted upon application for a certificate of authority to the commissioner, either for his approval or for information only, prior to the effectuation of the modification or amendment or to require the health maintenance organization to indicate the modifications to the commissioner at the time of the next site visit or examination. Article 20A.05(b) sets forth the determinations the commissioner must make prior to granting a certificate of authority to an HMO. Article 20A.37 provides that the commissioner by rule may establish minimum standards and requirements for ongoing internal quality assurance programs for health maintenance organizations, including but not limited to standards for assuring availability, accessibility, quality, and continuity of care. Article 1.03A provides that the Commissioner of Insurance may adopt rules necessary for the conduct and execution of the duties and functions of the Texas Department of Insurance only as authorized by a statute. 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 November 24, 1997. TRD-9715588 Caroline Scott General Counsel and Chief Clerk Texas Department of Insurance Effective date: December 8, 1997 Proposal publication date: August 19, 1997 For further information, please call: (512) 463-6327 SUBCHAPTER U. Services 28 TAC sec.sec.11.2001-11.2006 The new sections are adopted under the Insurance Code, Chapter 20A (as amended by the 75th Legislature in Senate Bill 385) and Article 1.03A. Insurance Code, Article 20A.22(a) provides that the commissioner may promulgate rules and regulations as are necessary and proper to carry out the provisions of the HMO Act (Insurance Code, Chapter 20A). Article 20A.22(b) provides, in part, that the commissioner is specifically authorized to promulgate rules to ensure that enrollees have adequate access to health care services and to establish mileage requirements for primary and specialty care and maximum travel times. Article 20A.04(b) provides that the commissioner may promulgate such reasonable rules and regulations as it deems necessary to the proper administration of the HMO Act to require a health maintenance organization, subsequent to receiving its certificate of authority, to submit the modifications or amendments to the operations or documents submitted upon application for a certificate of authority to the commissioner, either for his approval or for information only, prior to the effectuation of the modification or amendment or to require the health maintenance organization to indicate the modifications to the commissioner at the time of the next site visit or examination. Article 20A.05(b) sets forth the determinations the commissioner must make prior to granting a certificate of authority to an HMO. Article 20A.37 provides that the commissioner by rule may establish minimum standards and requirements for ongoing internal quality assurance programs for health maintenance organizations, including but not limited to standards for assuring availability, accessibility, quality, and continuity of care. Article 1.03A provides that the Commissioner of Insurance may adopt rules necessary for the conduct and execution of the duties and functions of the Texas Department of Insurance only as authorized by a statute. sec.11.2005. Optional Services. The provisions in this section apply to categories of other health care services which a HMO may offer in a basic health care plan pursuant to any service agreement. If offered, the following optional services shall be available and accessible to the enrolled population within the service area. (1) Inpatient skilled nursing care may be offered by one or a combination of the following: (A) a skilled nursing facility that is licensed by the state, unless exempt from licensure requirements; (B) a hospital that is licensed by the state, unless exempt from licensure requirements, which provides post hospital extended care services in Medicare approved swing-beds; and (C) a general or special hospital licensed by the state, unless exempt from licensure requirements, a distinct part of which is a skilled nursing facility; (2) Licensed home and community support services agencies or their licensed branches and alternate delivery sites (hospice only) may offer one or a combination of the following services: (A) licensed and certified home health services; (B) licensed home health services; (C) hospice services; (D) licensed home health services with home dialysis designation; and (E) personal assistance services. (3) Pharmacy services shall be available and accessible within the service area for the enrolled population through pharmacies licensed by the Texas State Board of Pharmacy. (A) Pharmacy services shall be offered directly by the HMO or through contracts. (B) The quality of pharmacy services, including the specifics of any drug formulary, shall be regularly reviewed by a committee established by the quality improvement committee. The functions of the committee may be performed by the quality improvement committee or by a separate committee composed of physicians, pharmacists and other professionals as needed, a majority of whom practice within the service area. (i) The committee shall be responsible for assuring that drug utilization review is performed on a regular basis, but not less than quarterly, to detect and prevent inappropriate drug use and negative outcomes. (ii) The committee shall assure that contracting pharmacies maintain medication records on the enrollee population and make use of such profiles to detect inappropriate drug use. (iii) The committee shall report its findings and recommendations to the quality improvement committee on a regular basis but not less than quarterly. (4) Other services may be offered by the HMO. The following is not intended to be a complete list of all possible benefit additions. (A) If health care services such as dental, physical therapy, occupational therapy, podiatric, nutrition or dietary, vision, durable medical equipment, mental health, chiropractic care, or any other health care services are offered, they shall be offered by the HMO or through contracts with physicians and other providers such as dentists and physical therapists who are licensed or otherwise authorized to practice in this state. (B) Such services shall be of sufficient number and location as to be readily available and accessible within the service area to the enrolled population. 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 November 24, 1997. TRD-9715460 Caroline Scott General Counsel and Chief Clerk Texas Department of Insurance Effective date: December 8, 1997 Proposal publication date: August 19, 1997 For further information, please call: (512) 463-6327 PART II. Texas Workers' Compensation Commission CHAPTER 102.Practice and Procedure 28 TAC sec.102.2 The Texas Workers' Compensation Commission (the commission) adopts an amendment to sec.102.2, concerning the acceptance of gifts, grants, and donations with changes to the proposed text as published in the September 26, 1997, issue of the Texas Register (22 TexReg 9626). The amendment is adopted to reflect changes in the Texas Government Code regarding the acceptance of gifts by state agencies. Recent legislation (Senate Bill 145, 75th Legislature, 1997) amended the Texas Government Code by adding Chapter 575 regarding the acceptance of gifts by state agencies. This new Chapter 575 defines "gift" and "state agency" and allows gifts of $500 or more to be accepted by a state agency that has a governing board only if the agency has the authority to accept gifts and a majority of the board, in an open meeting, approves accepting the gift. Chapter 575 also requires that the minutes of the board accepting a gift include the name of the donor, a description of the gift, and a statement of the purpose of the gift. Texas Labor Code, sec.402.062, specifically authorizes the Commission to accept gifts, grants, or donations. The amendment to sec.102.2 reflects the requirements of new Chapter 575 of the Government Code. Amendments to subsection (a) change the entity which may accept gifts, donations, and grants of $500 or more, from the Executive Director to the Commission and specifies that approval of such must be by a majority vote of the Commission at a public meeting. The change from the proposed text is in subsection (a) and is made to be consistent with the recent legislation. While the new statute sets the requirements described for gifts of $500 or more, the rule as proposed set the requirements for gifts of more than $500. The revision properly includes a gift of exactly $500 under the new requirements. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Labor Code, sec.402.061, which authorizes the commission to adopt rules necessary to administer the Act, the Texas Labor Code, sec.402.062, which allows the Commission to accept gifts, grants, or donations as provided by rules adopted by the Commission; and the Texas Government Code, Chapter 575, as added by Senate Bill 145, 75th Legislature, 1997, which provides procedures for acceptance of gifts by state agencies and prohibits acceptance of a gift from a person who is a party to a contested cases before the agency within 30 days of a final decision. sec.102.2.Gifts, Grants, and Donations. (a) The commission may accept gifts, grants, and donations made to the Texas Workers' Compensation Commission. If the value of the gift is $500 or more, the commission must approve acceptance of a gift or donation by a majority vote at a public meeting. The minutes of the public meeting shall include the name of the donor, a description of the gift or donation, and a statement of the purpose of the gift or donation. (b) The Executive Director shall forward all money or financial instruments received as a gift, grant, or donation to the Comptroller of Public Accounts, for deposit in the appropriate commission fund. (c) The Executive Director shall, where appropriate, convert non-monetary gifts, grants, and donations to cash. (d) A donor may direct the use of the gift, grant, or donation in writing. This direction will be followed by the commission, as nearly as practicable, and in accordance with state and federal law. (e) On behalf of the commission, the Executive Director may accept gifts, grants, or donations of less than $500 made to the Workers' Compensation Commission and shall report all gifts, grants, and donations received to the 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 November 12, 1997. TRD-9715168 Susan M. Cory General Counsel Texas Workers' Compensation Commission Effective date: December 2, 1997 Proposal publication date: September 26, 1997 For further information, please call: (512) 440-3972 CHAPTER 108.Fees. 28 TAC sec.108.1 The Texas Workers' Compensation Commission (the commission) adopts an amendment to sec.108.1, concerning charges for copies of public information without changes to the proposed text as published in the September 26, 1997, issue of the Texas Register (22 TexReg 9627). The amendment is adopted to implement statutory changes relating to charges to access Texas Workers' Compensation Commission information. A significant amount of information compiled and maintained by the Texas Workers' Compensation Commission is made confidential by various statutory provisions. To comply with the statutory mandates, the commission must redact a significant amount of material in voluminous information prior to making requested copies or providing access to the information. House Bill 3279, 75th Legislature, 1997, amended the Texas Labor Code, sec.402.081, to provide that the Texas Workers' Compensation Commission may charge a reasonable fee to recover costs for making available information that contains confidential information that must be redacted before it is made available. House Bill 3279 further provides that when a request is for the inspection of information of 10 or fewer pages and a copy is not requested, the commission may charge only the cost of making a copy of the page from which the information must be redacted. Current sec.108.1 references the Government Code and the General Services Commission rules; it does not reference the Texas Labor Code. The amendment to sec.108.1(a) adds a reference to the Texas Labor Code to clarify that statutory charge provisions for charges for copies of, or access to, public information are not limited to those in the Government Code. The amendment to sec.108.1(c) would clarify calculation of charges for requests for commission information which are not specified elsewhere. Where no fee is provided in the Government Code, the Labor Code or the General Service Commission rules, the amendment to subsection (c) provides for charging the actual cost, including the costs of materials, labor and overhead, to provide the information. The commission will be able to recover costs associated with providing access to public records which contain confidential information. The commission will continue to provide copies of public information to those requesting copies in an efficient manner and the cost burden will be born by the person requesting the service. House Bill 3279 does not affect claimants who seek access to or copies of their own claim files. No comments were received regarding adoption of the amendment. The amendment is adopted pursuant to the Texas Labor Code, sec.401.021, which sets out the application of other acts (including the open records law) to the Texas Labor Code; the Texas Labor Code, sec.402.061, which authorizes the commission to adopt rules necessary to administer the Act; the Texas Labor Code, sec.402.081, as amended by House Bill 3279, 75th Legislature, 1997, which provides for a reasonable fee to be charged for confidential information when access to commission records is requested; the Texas Labor Code sec.402.083, which provides for confidentiality of claim file information; the Texas Labor Code, sec.402.086, which provides for transfer of confidentiality of released claim file information; the Texas Labor Code, sec.402.091, which sets out penalties for failure to maintain confidentiality; the Texas Labor Code, sec.402.092, which provides for the confidentiality of information in commission investigation files; the Texas Government Code, sec.552.230 and sec.552.262, which authorize each state agency to promulgate rules of procedure for the inspection and obtaining copies of public information and to specify the charges the agency will make for obtaining copies of public information. 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 November 12, 1997. TRD-9715170 Susan M. Cory General Counsel Texas Workers' Compensation Commission Effective date: December 2, 1997 Proposal publication date: September 26, 1997 For further information, please call: (512) 440-3972 CHAPTER 114.Self-Insurance 28 TAC sec.114.4 The Texas Workers' Compensation Commission (the commission) adopts an amendment to sec.114.4, concerning self-insurance security requirements without changes to the proposed text as published in the September 26, 1997, issue of the Texas Register (22 TexReg 9628). The amendment is adopted to implement statutory changes resulting from the abolishment of the office of state treasurer. Recent legislation (House Bill 2841, 75th Legislature, 1997) amended the Texas Labor Code, sec.407.065, to conform the statute to reflect the abolishment of the office of state treasurer. The reference to the state treasurer at sec.407.065 of the Texas Labor Code was changed to the comptroller. House Bill 2841, sec.22.04, provides that conformance of the statutes to reflect the abolishment of the office of the state treasurer takes effect on September 1, 1997. The amendment to sec.114.4 is adopted to implement this requirement. The amendment to sec.114.4 changes the words "State Treasurer" to "Comptroller of Public Accounts" to conform it to the amended statute. This change will clarify where security deposits of self-insured entities are to be deposited. No comments were received regarding adoption of the amendment. The amendment is adopted pursuant to the Texas Labor Code, sec.402.061, which authorizes the commission to adopt rules necessary to administer the Act; the Texas Labor Code, sec.407.061, which sets out general requirements to be eligible for a certificate of authority to self-insure; the Texas Labor Code, sec.407.062, which sets out financial strength and liquidity requirements; the Texas Labor Code, sec.407.064, which sets out general security requirements for self-insureds; the Texas Labor Code sec.407.065, as amended by House Bill 2841, 75th Legislature, 1997, which sets out specific security requirements for self- insureds; Articles III, IV, VII and XV of the Texas Constitution, as amended by S.J.R. 1, 74th Legislature, which was approved by the voters, effective September 1, 1996, abolishing the constitutional office of state treasurer; and S.B. 20, the implementing legislation for S.J.R. 1, which transferred all powers and duties of the state treasurer to the comptroller of public accounts. 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 November 12, 1997. TRD-9715169 Susan M. Cory General Counsel Texas Workers' Compensation Commission Effective date: December 2, 1997 Proposal publication date: September 26, 1997 For further information, please call: (512) 440-3972 CHAPTER 125.Education and Training of Ombudsman 28 TAC sec.125.1, sec.125.2 The Texas Workers' Compensation Commission (the commission) adopts amendments to sec.125.1 and sec.125.2, concerning education and training of ombudsmen without changes to the proposed text as published in the September 26, 1996, issue of the Texas Register (22 TexReg 9629). These amendments are adopted to reflect changes to the statutory educational requirements in amendments to the Texas Labor Code, sec.409.042(b)(4). Recent legislation (House Bill 3522, 75th Legislature, 1997) amended the Texas Labor Code, sec.409.042(b)(4), to require an ombudsman to have at least one year of demonstrated experience in workers' compensation. This legislative change is meant to ensure that the Commission could secure a qualified applicant pool of candidates for any available ombudsman position. The statutory changes also prompted the Commission to review the language contained in other adopted rules to ensure that the language is consistent. The amendments change the definition of ombudsman in sec.125.1 to reflect the effective date of the legislative change and the number of years of workers' compensation experience required to qualify for an ombudsman position. Amendments to sec.125.2 delete subsection (f) because this provision is now unnecessary due to the change in experience requirements in the Texas Labor Code, sec.409.042(b)(4). The removal of the strict three year requirement will increase the ombudsman applicant pool and allow greater latitude in the selection of individuals for these positions. It will also decrease the likelihood of delays in selection of qualified ombudsmen and the need to post positions repeatedly in order to secure an adequate applicant pool. This change will help ensure qualified ombudsman are available to assist unrepresented injured workers or other parties in the informal and formal dispute resolution process. The deletion of sec.125.2(f) will remove unnecessary and outdated language which could be confusing to those reading the rule. No comments were received regarding adoption of the amendments. The amendments are adopted pursuant to the Texas Labor Code, sec.402.061, which authorizes the commission to adopt rules necessary to administer the Act; the Texas Labor Code, sec.409.041, which mandates the commission to maintain an ombudsman program to assist injured workers and persons claiming death benefits and sets out the responsibilities of an ombudsman, including the requirement to meet with an unrepresented claimant privately for a minimum of 15 minutes prior to any formal or informal hearing; and the Texas Labor Code, sec.409.042, which requires each field office to employ at least one ombudsman, sets qualifications for ombudsmen, mandates the commission to adopt training guidelines and continuing education requirements for ombudsmen, and sets out minimum requirements for training. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 12, 1997. TRD-9715171 Susan M. Cory General Counsel Texas Workers' Compensation Commission Effective date: December 2, 1997 Proposal publication date: September 26, 1997 For further information, please call: (512) 440-3972 CHAPTER 126.General Provisions Applicable to all Benefits 28 TAC sec.126.5, sec.126.6 The Texas Workers' Compensation Commission (the Commission) adopts amendments to sec.126.5, concerning Procedure for Requesting Required Medical Examinations and sec.126.6, concerning Order for Required Medical Examinations, with changes to the proposed text as published in the September 5, 1997, issue of the Texas Register (22 TexReg 8880). The amendments are adopted to reflect changes to the procedure for obtaining a required medical examination which are contained in amendments to the Texas Labor Code, sec.408.004. As required by the Government Code, sec.2001.033(1), the Commission's reasoned justification for this rule is set out in this order which includes the preamble, which in turn includes the rule. The reasoned justification is contained in this preamble, and throughout this preamble, including how and why the Commission reached the conclusions it did, why the rule is appropriate, the factual, policy, and legal bases for the rule, a restatement of the factual basis for the rule, a summary of comments received from interested parties, names of those groups and associations who commented and whether they were for or against adoption of the rule, and the reasons why the Commission disagrees with some of the comments and proposals. Changes made to the proposed rule are in response to public comment received in writing and at a public hearing held on October 8, 1997, and are described in the summary of comments and responses section of this preamble. Other changes were made for consistency or to correct typographical or grammatical errors. Changes in the proposed text are found in sec.sec.126.5(d)(7), 126.6(a), and 126.6(i). The changes are discussed in the comments and response section of this preamble. Recent legislation (House Bill 3161, 75th legislature, 1997) amended the Texas Labor Code, sec.408.004 to allow the Commission to adopt rules that require an injured employee to submit to not more than three medical examinations in a 180- day period under specified circumstances, including to determine whether there has been a change in the injured employee's condition, whether it is necessary to change the injured employee's diagnosis, and whether treatment should be extended to another body part or system. Prior to this amendment, an insurance carrier was entitled to an examination of the injured employee only once in a 180-day period. This legislation also requires the Commission to establish a monitoring system by rule and provides an administrative violation if the insurance carrier unreasonably requests additional required medical examinations. The amendments to sec.126.5 and sec.126.6 are adopted in response to these statutory provisions and to clarify some related minor administrative issues. The amendment to sec.126.5(a) deletes the list of information to be included on the form for requesting a required medical examination, updates the citation to the Texas Workers' Compensation Act (the Act) and clarifies the rule language. The information contained in a request form need not be specified by rule. The amendment to sec.126.5(b) clarifies that the concurrence and permission (agreement) of the injured employee is to be sought by the insurance carrier and requires the insurance carrier to report the agreement or failure to reach an agreement to the Commission. To be able to enforce the number of required medical examinations that are granted in a 180-day period, the Commission must be informed of all of the examinations. These changes provide a mechanism to notify the Commission of required medical examinations that are performed with the agreement of the injured employee as opposed to examination performed as a result of an order from the Commission. Currently, the Commission receives no notice of required medical examinations that are conducted as a result of an agreement between the parties. The amendment to sec.126.5(c) updates the citation to the Act and reflects the allowance for certain additional examinations. The amendment to sec.126.5(d) lists the reasons that the Commission may require an injured employee to submit to an additional required medical examination within a 180-day period. These reasons include the three required by the Act in addition to the other stated reasons that an additional required medical examination may be granted. Because the statute clearly allows a required medical examination for the purpose of determining whether or not maximum medical improvement (MMI) has been reached, this language has been deleted from this subsection. New subsection (e) is added to sec.126.5 to prohibit an insurance carrier from requesting additional examinations before the carrier has obtained approval for the originally requested examination. Subsection (e) also provides that a request for an additional examination will not be approved during a 180-day period for the same reason or rationale unless good cause is shown for allowing the examination. An exception to this prohibition is included in subsection (d)(7) for an examination that requires a doctor of a different medical specialty to render an opinion on maximum medical improvement or the impairment rating. New subsection (f) is added to sec.126.5 to clearly limit an insurance carrier to no more than three medical examinations within any 180 consecutive day period. New subsection (g) requires the Commission to monitor insurance carrier requests for medical examinations. New subsection (h) sets out some requests that constitute an unreasonable request for an additional required medical examination and new subsection (i) sets out the potential administrative violations. The amendment to sec.126.5(a) deletes the requirement that an agreement between the parties for an RME be in writing and the amendment to subsection (b) clarifies that it is the injured employee's responsibility to reschedule an appointment prior to the date the examination was to occur. The amendment to sec.126.6(c) clarifies that the injured employee's treating doctor may attend a required medical examination (as outlined in sec.134.5 of this title, relating to Treating Doctor Attendance at Medical Examination Under A Medical Examination Order) to eliminate any confusion between the language of the different rules. The amendment adds a new subsection (d) to address the situations where the insurance carrier's required medical examination doctor refuses to allow the treating doctor to attend the examination. The amendment to subsection (e) (previously subsection (d)) defines the submission of required reports by the required medical examination doctor and requires the report to be submitted to the treating doctor in addition to the other persons. The amendment to subsection (g) (previously subsection (f)) clarifies that designated doctor examinations and spinal surgery second opinion examinations are not considered required medical examinations under this section. The amendment to subsection (h) (previously subsection (g)) provides that if the required medical examination doctor refuses to allow the treating doctor to attend the examination, the injured employee would not be subject to an administrative violation for failure to submit to the examination. The amendment to subsection (i) (previously subsection (h)) clarifies that the insurance carrier is liable for the reasonable travel expenses incurred by the injured employee as a result of the required medical examination. Other changes to sec.126.6 update citations to the Act to reflect codification of the Act in the Texas Labor Code and make the language consistent throughout the section. Comments generally supporting the proposed amendment to sec.126.5 and sec.126.6 were received from the following: Texas Retailers Association; Texas Association of Business and Chambers of Commerce. Comments neither specifically supporting nor opposing, but suggesting changes to the proposed amendments to sec.126.5 and sec.126.6, were received from the following: Levi's; Texas Workers' Compensation Insurance Fund; Texas Osteopathic Medical Association; Hammerman & Gainer, Inc. Summaries of the comments and Commission responses are as follows: Section 126.5(b) Comment: Commenter suggested that language be added to sec.126.5 to prohibit the insurance carrier from requesting a required medical examination until after the expiration of 30 days from the date of injury. Commenter felt this would allow the medical complications to have time to manifest themselves. Texas Osteopathic Medical Association Response: The Commission disagrees. The only time limitations set forth by the statute are related to the period between examinations and the Texas Labor Code does not limit when the carrier may first request such an examination. Some of these examinations are done to assist the carrier in the investigative processes to determine whether or not an alleged injury is compensable. The ability to secure required medical examinations in a short period of time after the injury can assist in resolving disputes and thereby eliminate the need to have disputes adjudicated in the proceedings process. Section 126.5(d) Comment: Commenters suggested that the following additional reason be added to subsection (d): "Injured worker has no change in condition after receiving the same treatment over an extended period of time and has not reached MMI." The addition of this language was supported by another commenter who suggested that this reason would fall under the statutory criteria in the Texas Labor Code, sec.408.004(a)(1) or (a)(4). Commenters felt this would allow the carrier to have additional required medical examinations in situations where the injured employee is not showing any progress with the treatment protocol. Levi's, TABCC Response: The Commission disagrees. A review of the language contained in the statutory change clearly indicates that the additional required medical examinations should be allowed only in specific situations where there has been some change in condition. The commenters proposal is to allow multiple examinations when there has been no change in condition. This reason does not meet the statutory intent of the legislative change and should not be reflected as an appropriate reason for multiple examinations within a 180 day period. Section 126.5(d) Comment: Commenters indicated disagreement with the limitation of the reasons for additional required medical examinations and suggested that the list under 126.5(d) be "open ended". Commenters indicated that the limiting language in the proposed rule would not allow Commission staff to use their judgment in dealing with other unique situations. One commenter suggested that the addition of a subsection (d)(8) which would read "other reasons as determined necessary by the Commission staff member considering the approval of RME request." Levi's, TWCIF Response: The Commission disagrees. A review of the language contained in the statutory change clearly indicates that the additional required medical examinations should be allowed only in specific situations where there has been some change in condition. The inclusion of descriptive language regarding the situations in which additional required medical examinations are allowed indicates an intent to limit the reasons for granting additional examinations. Accordingly, a limited list has been included in the rule. The current language gives clear reasons which justify the approval of additional examinations. This provides guidance to those who must comply with the rule. In addition, clearly defining reasons for additional examinations aids enforcement of the rule. The Commission adopts the staff recommendation that the language in subsection (d)(7) be changed to the following for better clarity and to improve grammar and structure: "the injured employee has reached maximum medical improvement and to determine the impairment rating when the examination relates to a body part or system that is outside the expertise of the insurance carrier's required medical examination doctor selected under subsection (c) of this section." Section 126.5(h) Comment: Commenter suggested that the Rule provide a definition of an unreasonable request or limit unreasonable requests to those requests outlined in sec.126.5(h)(1)-(4). TWCIF Response: The Commission disagrees. The rule specifically lists four types of unreasonable requests and is sufficient to define the type of request which would be considered unreasonable. Limiting unreasonable requests to those requests outlined in subsection (h)(1)-(4) could prevent the Commission from acting on a clearly unreasonable request that was not contemplated at the time the rule was drafted. Section 126.6(a) Comment: Commenters suggested that the rule be changed to provide that, unless the Commission specifically denies the first request for a required medical examination within seven days, the request is automatically approved. Commenters felt this would negate the need for a Commission order for the first examination at the carrier's request and theoretically expedite the examination process. Commenters alleged that there are delays related to processing and mailing orders for these examinations which cause the carrier to often receive the notice well after the Commission's determination. Commenters contend that this change would require the Commission to notify the insurance carrier only in situations where the request has been denied. Commenter suggests alternately that the rule require mailing of the order granting or denying the request within the seven-day period. Texas Retailers Association, TABCC Response: The Commission disagrees. While the commenters have raised a concern regarding alleged time delays in securing an approval or a denial from the Commission, a review of the records in the automated system does not appear to support this assertion. A review was conducted of the Dispute Resolution Contact Logs to calculate the difference between the date of receipt of a TWCC-22 and the date of action by the Commission for the period from September 4, 1997 through October 3, 1997. This analysis revealed that the Commission processed most of the requests shortly after receipt, with an average processing time of 3.24 days. The issuance of an order for all examinations ensures that proper notice is provided to the injured employee and documents the approval of the required medical examination for compliance purposes. In addition, requirements for monitoring requests for additional examinations increases the need for the Commission to take an offical action on such requests. In reviewing this section of the rule, the requirement that the Commission send the injured employee's copy of the order by certified mail was brought to the Commission's attention. Research of the Commission's procedures revealed that the additional documentation provided by sending the order to the injured employee by certified mail had no particular use in the process. This requirement is therefore unnecessary and the provision regarding sending the injured employee's copy by certified mail in sec.126.6(a) has been changed to the following: ". . . A copy of the order shall be sent to the injured employee, the employee's representative, and the insurance carrier by first class mail or personal delivery." This change will not alter the injured employee's receipt of proper notification of the order and assists in expediting delivery to the parties on the same day. In addition, the change eliminates an unnecessary expense to the Commission. Section 126.6(b) Comment: Commenter suggested that sec.126.6(b) be changed to require the injured worker to notify the insurance carrier and to require the insurance carrier be responsible for rescheduling the appointment. Commenter noted that if the examining doctor does not perform this duty, the carrier does not generally find out about the rescheduling of the appointment until after the date of the original appointment. TWCIF Response: The Commission disagrees. The two primary persons (the injured employee and the examining doctor) that are involved in attending the appointment should be responsible for scheduling the appointment. These persons are in the best position to review their schedules and to select the date and time of a new appointment without the intervention of a third person. The intervention of a third person would unnecessarily complicate and possibly delay the scheduling process. Section 126.6(e) Comment: Commenter suggested that the rule require the examining doctor to secure a signed statement from the injured employee stating that the employee understands that the doctor will submit a report related to the certification of maximum medical improvement and/or the assignment of an impairment rating. Texas Osteopathic Medical Association Response: The Commission disagrees. The requirements for certification of maximum medical improvement (MMI) and the assignment of impairment rating (IR) fall under the purview of other rules that require the applicable form to be signed only by the doctor and mailed after the certification. Requiring a signed statement from the injured employee places an undue administrative burden on the examining doctor and provides no benefit to the process. Section 126.6(h) Comment: Commenter suggested that the rule include a provision to provide for the suspension of income benefits in the event that an injured employee fails to attend a required medical examination. Commenter believes that this possibility would serve as an encouragement for the injured employee to attend the examination or reschedule a missed appointment on a timely basis. Because benefits would be retroactively reinstated after the injured employee's submission to the examination, Commenter believes this provision would cause only limited economic effects on the individual. Texas Retailers Association Response: The Commission disagrees. Section 126.6(h) provides for the issuance of administrative penalties for failure of an injured employee to appear at the time scheduled for a required examination without good cause. At this point in time the Commission believes these penalties for administrative violations provide adequate means of enforcement of the requirement for employees to attend required medical examinations. Section 126.6(h) Comment: Commenter believes that employee failure to attend required medical examinations is a chronic problem and suggested that language be added to sec.126.6(h) to require a Benefit Review Conference be held within 30 days of a missed required medical examination appointment to determine whether or not good cause existed for the failure to attend the appointment. TWCIF Response: The Commission disagrees. The determination of whether good cause exists for making a referral for an administrative violation is not tied to the proceeding process. The insurance carrier simply informs the field office staff (typically the Official Actions Officer or the Dispute Resolution Officer) about the failure to attend the appointment. The field office staff reviews the information and makes a preliminary determination whether or not good cause existed. If not, the field office staff makes the appropriate referral to Compliance and Practices. Requiring the scheduling of a proceeding will increase the demand for dockets without any additional efficiency in the administrative violation referral process. Section 126.6(i) Comment: Commenters questioned whether the travel reimbursement guidelines in sec.134.6 apply to sec.126.6(i) and suggested that additional clarification be provided regarding the insurance carrier's liability to pay for expenses. Commenter proposed adding language to limit the reimbursement specifically to travel expenses. One commenter felt that the type of expenses a carrier should be responsible for should be limited explicitly to travel expenses currently covered under sec.134.6. Commenter felt this would eliminate any questions about the liability to pay for expenses that are not authorized in the Act and rules: including, child care expenses or payment of lost wages as a reimbursement in addition to income benefits that may or may not be due. One commenter proposed changing the language to state: "(t)he insurance carrier shall pay reasonable travel expenses incurred by the injured employee in submitting to any required medical examination, as specified by sec.134.6 of this title (relating to Travel Expenses)." Hammerman & Gainer, Inc., TWCIF Response: The Commission agrees. For clarification, sec.126.6(i) has been amended to include the language suggested by commenter that the carrier shall pay all reasonable travel expenses incurred by the employee in submitting to any required medical examination, as specified by sec.134.6 of this title. Section 126.6: General Comment: Commenter suggested that the rule prohibit the insurance carrier from selecting an RME doctor who has a contractual relationship with the employer. Texas Osteopathic Medical Association Response: The Commission disagrees. One of the purposes behind the RME process is to require an employee to submit to an examination at the request of the insurance carrier. The insurance carrier's right to select this doctor is an important part of the process. The RME doctor's report provides a medical opinion which can be disputed through an established dispute resolution process. Unlike designated doctors or spinal surgery second opinion doctors, the opinion of a required medical examination doctor holds no unique or special status. No information has been provided to show how limiting the insurance carrier's ability to select an RME doctor would benefit the system. Section 126.6: General Comment: Commenter believes that both the treating doctor and an examining doctor should be prohibited from determining maximum medical improvement and the assignment of an impairment rating at the initial visit of the injured worker. Texas Osteopathic Medical Association Response: The Commission disagrees. Whether or not an injured employee has reached maximum medical improvement requires the medical opinion and judgement of a doctor. This medical determination must be made by the examining doctor based on the doctor's expertise and evaluation and review of the medical records. The initial appointment with an examining doctor may occur at a time where the certification of maximum medical improvement would be appropriate. The suggested prohibition would limit the doctor's ability to provide their medical opinion and is therefore inappropriate. Further, if either party timely disputes any certification of maximum medical improvement, the statute provides a specific avenue to resolve such a dispute - - the selection of a designated doctor. General Comments Comment: Commenter supported the rule in general stating that it will ensure better oversight of medical treatment for the protection of injured workers and the employer who pays for medical care. Commenter felt that the rule will help resolve potential disputes quickly and without the need for formal dispute resolution. Texas Retailers Association Response: The Commission agrees. The amendments are adopted pursuant to the Texas Labor Code, sec.402.061, which authorizes the Commission to adopt rules necessary to administer the Act; the Texas Labor Code, sec.408.004, which sets out when the Commission may require an injured employee to submit to medical examinations and specifically provides for the adoption of rules regarding the process for such examinations; the Texas Labor Code, sec.408.022, which provides for the injured employees' selection of treating doctor; the Texas Labor Code, sec.408.122, which establishes a claimant's eligibility for impairment income benefits and the process by which a doctor designated by the Commission will settle disputes regarding whether a claimant has reached maximum medical improvement; and the Texas Labor Code, sec.408.125, which establishes the process by which a doctor designated by the Commission will settle disputes regarding impairment ratings. sec.126.5.Procedure for Requesting Required Medical Examinations. (a) The commission may authorize a required medical examination for any reason set forth in the Texas Workers' Compensation Act (the Act), Texas Labor Code sec.408.004 whether the request for the examination is made by the carrier or a division of the commission. The request shall be made in the form and manner prescribed by the Commission (b) The commission shall not require an injured employee to submit to a medical examination at the insurance carrier's request until the insurance carrier has made an attempt to obtain the agreement of the injured employee for the examination. The insurance carrier shall notify the commission in the form and manner prescribed by the commission about any agreement or non-agreement of the injured employee regarding the requested examinations. If an agreement is secured for an additional required medical examination within a 180-day period pursuant to subsections (d) and (e) of this section, the written notification must also include an explanation of why good cause exists for the additional required medical examination. (c) An insurance carrier's request for a medical examination order shall be delivered to the commission office managing the claim, and be sent by certified mail to the injured employee, or the employee's representative on the same day. A carrier is entitled to only one required medical examination, as allowed by the Act, sec.408.004 every 180 days, except as permitted in subsection (d) and (e) of this section. (d) For dates of injury on or after September 1, 1997, the commission may approve additional required medical examinations at the insurance carrier's request before the expiration of 180 days in the event that a medical opinion is needed to determine if: (1) there has been a change in the injured employee's condition; (2) there is a need to change the injured employee's diagnosis; (3) the treatment should be extended to another body part or system, or if the extent of injury has changed; (4) the compensable injury is a producing cause of additional problems or conditions; (5) disability exists, because of newly discovered information; (6) proposed surgery, other than spinal surgery, is necessary to treat the compensable injury; or (7) the injured employee has reached maximum medical improvement and to determine the impairment rating when the examination relates to a body part or system that is outside the expertise of the insurance carrier's required medical examination doctor selected under subsection (c) of this section. (e) Except for the reason listed in subsection (d)(7) of this section, any request by an insurance carrier for an additional required medical examination shall be submitted only after the insurance carrier has previously had an examination under subsection (c) of this section. Unless good cause exists, a request for an additional required medical examination under subsection (d) of this section will not be approved during a 180 day period for the same reason or rationale. (f) The injured employee shall not be required to submit to more than three required medical examinations at the request of the insurance carrier under this section within any 180 consecutive day period. (g) The commission shall monitor all insurance carrier requests for medical examinations that are requested before the expiration of the 180-day period under subsections (d) and (e) of this section through statistical analysis, audits, or other appropriate means. (h) An unreasonable request for an additional medical examination under subsections (d), (e) and (f) of this section includes: (1) a request for an additional examination for a reason which does not comply with this section; (2) a request for a different doctor without sufficient grounds; (3) a request which would result in a violation of subsection (f) of this section; and (4) a request which provides false, incomplete, or misleading information. (i) An insurance carrier who unreasonably requests an additional required medical examination as defined in subsection (h) of this section, commits a Class B administrative violation. An insurance carrier who demonstrates a pattern of unreasonably requesting additional required medical examinations commits a Class A administrative violation. sec.126.6.Order for Required Medical Examinations. (a) When a request is made by the carrier, or a division of the commission, for a medical examination, the commission shall determine if an examination should be ordered. The commission shall issue an order granting or denying the request within seven days of the date the request is received by the commission. A copy of the order shall be sent to the injured employee, the employee's representative, and the insurance carrier, by first class mail or personal delivery to the carrier. The order shall state the penalty cited in subsection (g) of this section. An agreement between the parties for an examination under sec.126.5 of this title (relating to Procedure for Requesting Required Medical Examinations) has the same effect as the commission's formal order. (b) All examinations ordered must be scheduled as soon as possible, with at least 10 days notice to the injured employee or the employee's representative. If a scheduling conflict exists, the injured employee must contact the doctor prior to the examination to re-schedule the examination to a time within seven days of the examination. In this event, the examining doctor shall notify the carrier. (c) The injured employee's treating doctor, chosen under the Texas Workers' Compensation Act (the Act), Texas Labor Code, sec.408.022, may be present at an examination scheduled according to subsection (b) of this section. The injured employee's treating doctor may observe the conduct of the examination, and may consult with the examining doctor about the course of the injured employee's treatment. The injured employee's treating doctor shall not otherwise participate in, or impede, the examination. (d) If the required medical examination doctor, selected by an insurance carrier, refuses to allow the treating doctor to attend the examination, the insurance carrier shall cancel the appointment and request that another doctor be approved for the required medical examination. If reasonable notice is not provided to the injured employee or the employee's representative, the insurance carrier shall be liable for any reasonable travel expenses incurred by the injured employee and for the payment for the treating doctor's attendance at a refused appointment. This subsection shall not apply to situations where the treating doctor is not able to attend the examination due to any form of scheduling conflict. The required medical examination is not required to be scheduled based on the availability of the treating doctor. (e) An examining doctor who determines the injured employee has reached maximum medical improvement or who assigns an impairment rating shall complete and file the report as required by sec.130.1 and sec.130.3 of this title (relating to Reports of Medical Evaluation; Maximum Medical Improvement and Certification of Maximum Medical Improvement by Doctor Other than Treating Doctor). Other reports shall be completed according to applicable rules for consultant medical reports as described in sec.133.104 of this title (relating to Consultant Medical Reports) and shall be sent to the carrier, injured employee, the treating doctor, and commission no later than ten days after the examination. (f) The commission shall, if disputed, hold a benefit review conference within 30 days after receiving notification that the examining doctor has released the injured employee to return to work, and the carrier shall continue benefits pending the benefit review conference. (g) A doctor who conducts an examination solely under the authority of an order issued according to this rule shall not be considered a designated doctor under the Act, sec.408.122 or sec.408.125. Examinations with a designated doctor or a second opinion spinal surgery doctor under the Act, sec.408.026, are not subject to any limitations under the provisions for required medical examinations. (h) An injured employee who, without good cause, fails or refuses to appear at the time scheduled for an examination authorized by this section may be assessed a Class D administrative penalty under the Act, sec.408.004(f). An injured employee who fails to submit to an examination at the insurance carrier's request when the carrier selected doctor refuses to allow the treating doctor to attend the examination shall not be subject to this administrative violation for that particular appointment. (i) The commission shall order examinations requiring travel of up to 75 miles from the injured employee's residence unless the treating doctor certifies that such travel may be harmful to the injured employee's recovery. The insurance carrier shall pay reasonable travel expenses incurred by the injured employee in submitting to any required medical examination, as specified by sec.134.6 of this title (relating to Travel Expenses). 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 November 12, 1997. TRD-9715172 Susan M. Cory General Counsel Texas Workers' Compensation Commission Effective date: January 1, 1998 Proposal publication date: September 5, 1997 For further information, please call: (512) 440-3972 CHAPTER 129.Income Benefits — Temporary Income Benefits 28 TAC sec.129.3 The Texas Workers' Compensation Commission (the commission) adopts an amendment to sec.129.3 concerning information included with the first payment of temporary income benefits, without changes to the proposed text as published in the September 26, 1997, issue of the Texas Register (22 TexReg 9633) and the rule will not be republished. This amendment is adopted to reflect current ombudsman policy. The amendment to sec.129.3 changes paragraph (6) by adding language which clarifies that ombudsman assistance is provided to employees who have been notified of a benefit review conference or a benefit contested case hearing. In addition, a sentence has been added to paragraph (6) to clarify how employees can obtain answers to questions other than those about a pending proceeding. As part of its review of current rules regarding the ombudsman program, the Commission saw a need to revise sec.129.3 to reflect the scope of the ombudsman program. Ombudsman assistance is not generally provided until after a dispute has been scheduled for a benefit review conference or a benefit contested case hearing. An injured employee who seeks information concerning matters other than a pending proceeding should not contact an ombudsman but should contact other TWCC employees who can answer these questions, so information and assistance is provided by TWCC in the most efficient and effective way. The language change is necessary to ensure that accurate information is provided to injured employees regarding the most efficient way of contacting the Commission in the event that they have any questions regarding their injury. No comments were received regarding adoption of the amendment. The amendment is adopted pursuant to the Texas Labor Code, sec.402.061, which authorizes the commission to adopt rules necessary to administer the Act; the Texas Labor Code, sec.409.041, which mandates the commission to maintain an ombudsman program to assist injured workers and persons claiming death benefits and sets out the responsibilities of an ombudsman, including the requirement to meet with an unrepresented claimant privately for a minimum of 15 minutes prior to any formal or informal hearing; and the Texas Labor Code, sec.409.042, which requires each field office to employ at least one ombudsman, sets qualifications for ombudsmen, mandates the commission to adopt training guidelines and continuing education requirements for ombudsmen, and sets out minimum requirements for training. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 12, 1997. TRD-9715173 Susan M. Cory General Counsel Texas Workers' Compensation Commission Effective date: December 2, 1997 Proposal publication date: September 26, 1997 For further information, please call: (512) 440-3972 CHAPTER 133.General Medical Provisions SUBCHAPTER B.Required Reports 28 TAC sec.133.103 The Texas Workers' Compensation Commission (the commission) adopts an amendment to sec.133.103, concerning Specific Medical Reports, without changes to the proposed text as published in the September 26, 1997, issue of the Texas Register (22 TexReg 9634). The amendment is adopted to correct references to other rules and statutes referred to in this section. Section 133.103 requires a treating doctor to submit specific medical reports, when certain listed conditions exist, to the carrier and the injured employee's representative and specifies the information required to be in the report. The amendment to sec.133.103 merely updates the references to other rules and statutes. In subsection (b) the reference to sec.133.201, which was repealed, has been changed to sec.133.206, which sets out the spinal surgery second opinion process. The Commission has received complaints that some insurance carriers were not reimbursing health care providers for completion of the TWCC- 63 form (Recommendation for Spinal Surgery) because sec.133.103(b) did not specifically reference the current spinal surgery rule (sec.133.206). The amendment addresses this complaint by correcting the reference to the spinal surgery rule, to eliminate any argument regarding payment for health care providers completing the TWCC-63 form. In subsections (c) and (d) references to the Texas Workers' Compensation Act, sec.4.16 have been changed to sec.408.004 to reflect the codification of this section into the Texas Labor Code. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Labor Code, sec.402.061, which authorizes the commission to adopt rules necessary to administer the Act; Texas Labor Code, sec.408.025, which authorizes the Commission to adopt by rule requirements for reports and records from health care providers; the Texas Labor Code, sec.408.026, which establishes when an insurance carrier is liable for costs relating to spinal surgery and requires that the Commission adopt rules necessary to effectuate the statute; and the Texas Labor Code, sec.408.027, which establishes the procedure for payment to health care providers. 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 November 12, 1997. TRD-9715174 Susan M. Cory General Counsel Texas Workers' Compensation Commission Effective date: December 2, 1997 Proposal publication date: September 26, 1997 For further information, please call: (512) 440-3972 CHAPTER 134.Guidelines for Medical Services, Charges, and Payments SUBCHAPTER K.Treatment Guidelines 28 TAC sec.134.1003 The Texas Workers' Compensation Commission (the commission) adopts new sec.134.1003, concerning the Lower Extremities Treatment Guideline (LETG) with changes to the proposed text as published in the September 5, 1997, issue of the Texas Register (22 TexReg 8883). As required by the Government Code, sec.2001.033(1), the Commission's reasoned justification for this rule is set out in this order which includes the preamble, which in turn includes the rule. The reasoned justification is contained in this preamble, and throughout this preamble, including how and why the Commission reached the conclusions it did, why the rule is appropriate, the factual, policy, and legal bases for the rule, a restatement of the factual basis for the rule, a summary of comments received from interested parties, names of those groups and associations who commented and whether they were for or against adoption of the rule, and the reasons why the Commission disagrees with some of the comments and proposals. Changes made to the proposed rule are in response to public comment received in writing and at a public hearing held on October 8, 1997, and are described in the summary of comments and responses section of this preamble. Other changes were made for consistency or to correct typographical or grammatical errors. Changes in the proposed text are found in the primary treatment table for myofascial pain syndrome and surgical indications. Antidepressants were added under medications as a possible treatment intervention for myofascial pain syndrome. To ensure consistency with other sections, changes in wording were made to the following portions of the surgical indications section: subsection (g)(1)(B), (g)(1)(C), (g)(1)(C)(i), and (g)(2)(C). The Commission does not condone, nor support application or implementation of this document in its entirety or any portion thereof as a clinical policy or in a clinical decision-making capacity to determine reimbursement for medical services or treatment provided in the workers' compensation arena. The Lower Extremities Treatment Guideline is adopted to clarify those services that are reasonable and necessary nonoperative care and to list surgical indicators for the lower extremities for the injured workers of Texas. The guideline is not to be used as a fixed treatment protocol, but rather identifies a reasonable and medically necessary normal course of treatment, and reflects typical courses of intervention. It is anticipated that there will be injured workers who will require less or more treatment than average. It is acknowledged that in atypical cases, treatment falling outside this guideline will occasionally be necessary. However, those cases that exceed the guideline level of treatment will be subject to more careful scrutiny and review and will require documentation of the special circumstances that justify the treatment. This guideline should not be seen as prescribing the type and frequency or length of intervention. Treatment must be based on patient need and professional judgement. The adopted rule is designed to function as a guideline and should not be used as the sole reason for denial of treatments and services. It is anticipated that this guideline will be subject to review and possible revision on a regular basis. Subsection (a) of the adopted rule provides a table of contents for the Guideline. Subsection (b) contains the effective date, purpose, goals, development process and general philosophy of care for the Guideline. Subsection (c) describes the role of the treating doctor and subsection (d) describes how the Guideline is to be used by health care providers, insurance carriers, the TWCC Medical Review Division, consulting or peer review providers, injured workers, and employers. Subsection (e) sets out ground rules for use of the Guidelines and subsection (f) explains the use of the non-operative treatment tables which comprise the majority of the rule. Subsection (g) describes surgical indications for lower extremity injuries, subsection (h) contains a glossary of terms used in the Guideline, and subsection (i) is a bibliography of references used for this Guideline. The clinical and diagnostic treatment guidelines contained in this new rule have been developed in conjunction with health care providers and other parties in the workers' compensation system. The Commission's Medical Review Division, in conjunction with the Commission's Medical Advisory Committee (MAC) and a broad representation from the medical community, have worked together to develop the Lower Extremities Treatment Guideline. By statute, the MAC advises the division in developing and administering the medical policies, fee guidelines, and utilization guidelines established under the Texas Labor Code, sec.413.011. The MAC is composed of members from the following fields, appointed by the Commission: public health care facility, private health care facility, a doctor of medicine, a doctor of osteopathic medicine, a chiropractor, a dentist, a physical therapist, a pharmacist, a podiatrist, an occupational therapist, a medical equipment supplier, a registered nurse, a representative of employers, a representative of employees, and two representatives of the general public. The Medical Review Division also formed the Lower Extremities Treatment Guideline Workgroup composed of members from the following professions: chiropractic, medicine, physical therapy, podiatry, occupational therapy, and nursing. After the workgroup finalized a draft LETG, regional focus group meetings were held to collect opinions on the LETG draft. Separate focus groups were held for both chiropractors and medical doctors in Austin, Dallas, El Paso, Houston, and San Antonio. Input from the focus groups was used by the MAC in recommending changes and by the Medical Review Division in revising the draft. During the development phase of this guideline, health care providers in the Lower Extremities Treatment Guideline Workgroup and the Commission's Medical Advisory Committee reviewed the guideline and provided input. Neither group reached consensus on the use of manipulation and acupuncture as reasonable and medically necessary normal courses of treatment for various lower extremities diagnoses. An analysis of the TWCC medical bills database for the period April 1, 1996 through April 1, 1997 showed that these treatments are used in certain lower extremities diagnoses. The MAC Chairman asked MAC members to submit scientific, peer-reviewed studies to the Medical Review division to support the MAC members' respective positions on the use of manipulation and acupuncture for treatment of lower extremity diagnoses. The materials received by the Commission were reviewed and evaluated. The materials showed little evidence of peer review and were mostly single-subject case studies. Staff research revealed that single-subject case studies rank low as an accepted method for establishing the efficacy of treatment methods. In response to staff's request for diagnosis-specific, published, scientific studies, one commenter submitted sections from a medical osteopathic textbook to document the use of manipulations for these conditions. The textbook sections submitted by the commenter appear to be for training purposes and do not address the efficacy of manipulation through reliable scientific research methodologies. Therefore, this submitted material was not sufficient to justify adding manipulation to the tables suggested by commenter. Manipulation and acupuncture have been included in those diagnosis-specific treatment tables where the TWCC database of medical bills showed 5.0% or more of claimants with that diagnosis received these treatments. The 5.0% threshold was chosen because it offers a conservative measure that allows for the inclusion of treatment interventions that occur frequently enough in the workers' compensation system to indicate, in the absence of other data or information, a typical course of intervention. The guideline has been designed to achieve the following goals: (1) to assist all parties with regard to the appropriate treatment and management of lower extremity injuries; (2) to establish elements against which aspects of care can be compared; (3) to establish a guideline to exemplify clinically acceptable courses of treatment for specific disorders; (4) to establish documentation standards which support the appropriateness of the level of service; and (5) to provide a mechanism of prospective, concurrent, and retrospective review for efficient and effective health care utilization. The development process involved a national search of state agencies administering workers' compensation programs, which revealed that only a few states had developed treatment guidelines. Research revealed a matrix approach to be the most understandable format for the guideline. A survey of guidelines developed in the private sector identified that involvement from provider work groups achieved the best outcome regarding clinical policy development. The guideline is adopted to promote quality health care, injury specific treatment and appropriateness of care, by identifying clinically acceptable courses of care for specific lower extremities injuries, and by facilitating communication between all parties in order to achieve rapid recovery from the effects of an injury. This communication will also promote a timely return to modified or full duty work that takes into account the job demands and the functional capabilities of the injured worker. The Commission considered all relevant statutory and policy mandates and objectives and designed this rule to achieve those mandates and objectives, including the following: (1) the establishment of medical policies and guidelines relating to use of medical services by employees who suffer compensable injuries; (2) the establishment of medical policies relating to necessary treatments for injuries which are designed to ensure the quality of medical care and designed to achieve effective medical cost control; (3) the establishment of a program for prospective, concurrent, and retrospective review and resolution of a dispute regarding health care treatment and services; and (4) the establishment of a program for systematic monitoring of the necessity of treatments administered, for detection of practices and patterns by insurance carriers in unreasonably denying authorization of payment, and for increasing the intensity of review for compliance with medical policies or fee guidelines. New sec.134.1003 will achieve these objectives by: (1) identifying services that are reasonable and medically necessary for treatment of lower extremity injuries; (2) assisting all parties with regard to the appropriate treatment and management of disorders of the lower extremities in workers' compensation healthcare; (3) establishing a guideline against which aspects of care can be compared; (4) identifying clinically acceptable courses of care for specific lower extremity injuries; (5) establishing documentation standards which support the appropriateness of the level of service for assessment/evaluation and on-going treatment; (6) providing a mechanism for prospective, concurrent, and retrospective review to ensure efficient and effective health care utilization; and (7) establishing normal courses of treatment based on clinical indicators at different levels of healing. In accordance with the statutory objectives and Commission policy, the Lower Extremities Treatment Guideline seeks to balance the need for cost control and review with the need for access to quality medical care by establishing typical courses of treatment, but allowing treatment outside the set parameters with additional documentation of the need for the treatment. Quality of medical care is ensured by reliance upon input from experts and recognized studies in the field of lower extremities treatment, and establishment of normal courses of treatment and treatment parameters for specific lower extremity injuries. The guideline ensures access to health care and that quality care will be available in each individual case by its ground rules that allow for treatment outside the stated parameters. Effective medical cost control is achieved by establishing parameters for eligibility and termination of treatment, by setting documentation standards which support the appropriateness of the treatment; by requiring additional documentation for treatment falling outside the guideline's parameter; and by providing that treatments for lower extremities are subject to the Commission's separate rule requiring carrier preauthorization for certain treatments as a prerequisite to payment for the services. The guideline allows for prospective, concurrent, and retrospective review of treatment by: setting standards for eligibility and treatment and setting documentation standards. These standards are to be used by health care providers as a basis for prospective review of possible treatment. The guideline and the documentation requirements should also provide the health care provider with a means to justify treatments when questioned concurrently or retrospectively by an insurance carrier. The guideline and documentation also provide a starting point for carriers in conducting prospective, concurrent, or retrospective review of treatment. The Medical Review Division and the Compliance and Practices Division will use the guideline and documentation as a tool for prospective, concurrent, and retrospective review of treatment, including use in conducting audits of health care providers and insurance carriers, use in the establishment of a program for systematic monitoring of the necessity of treatments administered, and use in medical dispute resolution. The guideline also promotes quality health care, injury specific treatment and appropriateness of care, by facilitating communication between all parties in order to achieve rapid recovery from the effects of an injury. This communication will also promote a timely return to modified or full duty work that takes into account the job demands and the functional capabilities of the injured worker. The rule will promote quality health care and injury specific treatment for injured workers by identifying clinically acceptable courses of care for specific lower extremities injuries. Another benefit will be that the rule will provide a mechanism to monitor the necessity of treatment administered and establish treatment parameters, thus providing greater efficiency in the provision of treatment to the injured worker for lower extremity injury. The number of disputes regarding lower extremities treatments and preauthorization requests should be reduced because the guideline clarifies what is a normal course of treatment and reflects typical courses of intervention. In addition, fewer disputes should result in a reduction of costs to the workers' compensation system and in more timely and appropriate treatment of an injured worker. Comments supporting and suggesting changes to the proposed new sec.134.1003 were received from the following: Kyle Babick, Ph.D. & Associates, P.C. Comments neither specifically supporting nor opposing the proposed new sec.134.1003 but suggesting changes were received from the following: Genzyme Tissue Repair; Texas Osteopathic Medical Association. Summaries of the comments and commission responses are as follows: Kyle Babick, Ph.D. & Associates, P.C., Dallas, Texas COMMENT: The commenter supported the proposed Lower Extremities Treatment Guideline (LETG). The commenter stated that the LETG addresses the appropriateness of mental and behavioral health services and is consistent with previous treatment guidelines and practice standards. RESPONSE: The Commission agrees. Kyle Babick, Ph.D. & Associates, P.C., Dallas, Texas COMMENT: Commenter recommended adding antidepressants to the list of medications in the primary treatment table for myofascial pain syndrome. Commenter noted that antidepressants are often prescribed early in this syndrome for non- narcotic pain control and non-addictive sleep control. RESPONSE: The Commission agrees. Staff has reviewed this issue and antidepressants have been added to the list of medications in the primary level of care treatment table for myofascial pain syndrome. Regional Account Manager, Genzyme Tissue Repair, Cambridge, Massachusetts COMMENT: The commenter recommended adding autologous chondrocyte implantation to the Lower Extremities Treatment Guideline (LETG) for the treatment of cartilage defects. The commenter described autologous chondrocyte implantation as the biological repair of damaged knee cartilage and submitted information regarding the procedure. RESPONSE: The Commission disagrees. The treatment procedure described by the commenter is not appropriate for inclusion in the Lower Extremities Treatment Guideline (LETG) treatment tables because the treatment is surgical while the tables contain only non-operative care and treatment. Autologous chondrocyte implantation is a treatment intervention that involves surgery. The LETG contains a surgical indications section describing conditions which indicate the possible need for surgical interventions, but does not include recommended interventions or procedures. Therefore, it is inappropriate to add this or any specific surgical intervention to the LETG. Choice of a particular surgical procedure (such as autologus chondrocyte implantation) is left to the professional judgment of the surgeon. Executive Director, Texas Osteopathic Medical Association, Austin, Texas COMMENT: Commenter expressed dismay that a doctor of osteopathy was not selected to participate in the Lower Extremities Treatment Guideline (LETG) workgroup or in the regional focus groups. RESPONSE: The Commission neither agrees or disagrees. The Commission actively sought participation by a variety of groups including the osteopathic profession in the development of the Lower Extremity Treatment Guideline (LETG). An invitation was extended to the Texas Workers' Compensation Commission Medical Advisory Committee (MAC) to nominate participants for the LETG workgroup. The osteopathic nominee for the LETG workgroup declined the invitation to participate. Staff requested the assistance of the Texas Osteopathic Medical Association (TOMA) in finding an osteopathic representative willing to participate in the workgroup process. Repeated attempts by staff to obtain names of possible participants from TOMA were unsuccessful. The LETG draft was reviewed by the commission's Medical Advisory Committee which includes an osteopathic representative. With the LETG, the commission began its first attempt at obtaining input from regional focus groups. The number of focus groups was limited to allow evaluation of the usefulness of such focus groups before devoting additional resources to this input medium. Medical doctors and chiropractors were chosen for these initial focus groups because they are the two largest treating doctor groups in the workers' compensation system. Executive Director, Texas Osteopathic Medical Association, Austin, Texas COMMENT: Commenter commended the Upper Extremities Treatment Guideline (UETG) and recommended that the Lower Extremities Treatment Guideline (LETG) be uniform with the UETG. RESPONSE: The Commission agrees that there is value in keeping treatment guidelines consistent. However because these guidelines are developed by different workgroups at different times, it is almost impossible to have word for word consistency. The Commission strives to retain as much consistency as possible as guidelines are developed and revised. Executive Director, Texas Osteopathic Medical Association, Austin, Texas COMMENT: The commenter found significant problems with the Lower Extremities Treatment Guideline (LETG). Commenter stated that the durations for the primary, secondary and tertiary levels of care treatment tables differed significantly from the durations in the Upper Extremities Treatment Guideline (UETG). The commenter noted that the durations for tertiary level of care treatment tables in the LETG are typically 0-2 months whereas in the UETG they are consistently 0-6 months. Commenter recommended that the durations for the primary, secondary and tertiary levels of care treatment tables in the LETG be uniform with those listed in the UETG. Specifically the commenter recommended that all primary level of care treatment table durations be 0-3 months except for avascular necrosis which should be 0-6 months and traumatic arthritis which should be 0-4 months. Commenter also specifically recommended that all secondary level of care treatment table durations be 0-3 months and all tertiary level of care treatment table durations be 0-6 months. RESPONSE: The Commission disagrees that the proposed durations should be changed. Medical representatives who served on the Texas Workers' Compensation Commission Medical Advisory Committee (MAC), the Lower Extremity Treatment Guideline workgroup, and who attended focus groups, consistently advised staff that based on their expertise the durations contained in early drafts of the LETG, which were consistent with the durations in the Upper Extremity Treatment Guideline (UETG), were of no value because they were too long and not diagnosis- specific. The MAC recommended that the workgroup arrive at actual diagnosis- specific durations based on the workgroup's expertise. The durations in the Lower Extremities Treatment Guideline represent the workgroup's response to the MAC recommendation. Executive Director, Texas Osteopathic Medical Association, Austin, Texas COMMENT: Commenter expressed reservations over the types of treatment interventions contained in the Lower Extremities Treatment Guideline (LETG). Specifically the commenter noted that manipulation is very limited in the LETG when compared to the Upper Extremities Treatment Guideline (UETG). Commenter expressed the desire to understand the rationale for the use of manipulations for diagnoses such as sprains, strains, and musculotendinitis in the UETG and the absence of manipulations for similar diagnoses in the LETG. Commenter further stated that osteopaths use osteopathic manipulations to treat somatic dysfunction and soft tissue injuries for upper and lower extremities. Commenter submitted sections from a medical osteopathic textbook to document the use of manipulations for these conditions. Commenter specifically recommended that manipulations be added as treatment interventions in the primary, secondary, and tertiary level of care treatment tables for the following diagnoses: ankle musculotendinitis and bursitis/tenosynovitis; knee musculotendinitis and bursitis/tenosynovitis; knee musculotendinitis, bursitis/tenosynovitis; neuropathy; avascular necrosis; intra-articular pathology and traumatic arthritis; and myofascial pain syndrome. In addition commenter recommended adding manipulations as treatment interventions in the primary, secondary, and tertiary level of care treatment tables for the following diagnoses: ankle sprain/strain and tear, knee meniscus tear and bursitis/tenosynovitis, knee sprain/strain and tear (with the addition of the statement "Osteopathic manipulation is not indicated where there is a complete tear"); and for crush injury (with the addition of the statement "Osteopathic manipulation only when injury is confined to soft tissue"). RESPONSE: The Commission disagrees that manipulations should be added to all the diagnoses suggested by commenter. The Lower Extremity Treatment Guideline (LETG) differs from the Upper Extremity Treatment Guideline (UETG) in that certain treatment interventions, such as manipulation and acupuncture, do not appear as frequently in the LETG as they do in the UETG. In the development of the UETG the workgroup and Medical Advisory Committee (MAC) reached consensus on the treatment interventions that were to be included in the treatment tables. In the development of the LETG this was not the case. The LETG is based on the most current analysis and input available to the commission. Hence the treatment interventions included in the treatment tables for LETG differ for similar diagnoses in the UETG. Due to the differences of opinion regarding manipulations at the LETG workgroup and focus group level, the issue was presented to the Commission's Medical Advisory Committee for its recommendation. MAC members were unable to reach a consensus on the use of manipulations as a reasonable and medically necessary normal course of treatment for various lower extremity diagnoses. The MAC Chairman asked MAC members to submit scientific, peer-reviewed studies to the Medical Review division to support the MAC members' respective positions on the use of manipulation for treatment of lower extremity diagnoses. The materials received by the Commission were reviewed and evaluated. The materials showed little evidence of peer review and were mostly single-subject case studies. Staff research revealed that single-subject case studies rank low as an accepted method for establishing the efficacy of treatment methods. The textbook sections submitted by the commenter appear to be for training purposes and do not address the efficacy of manipulation through reliable scientific research methodologies. Therefore, this submitted material was not sufficient to justify adding manipulation to the tables suggested by commenter. Staff also reviewed the commission's own data to evaluate past use of manipulation in the treatment of lower extremity injuries. An analysis of the TWCC medical bills database for the period of April 1, 1996 through April 1, 1997 was performed to determine the extent to which manipulation was used in the treatment of lower extremity injuries in the workers' compensation system. The analysis showed that, while manipulations are rarely used in some lower extremity diagnoses, they are often used in certain lower extremity diagnoses. It is therefore appropriate to include manipulations for some diagnoses. Because the purpose of the LETG is to develop a course of treatment that is a reasonable and medically necessary normal course of treatment, manipulations are not included in treatment tables unless the analysis of the TWCC medical bills database showed that at least 5.0% of claimants received manipulation treatment for a particular diagnosis. The 5.0% threshold was chosen because it is a conservative measure that allows for the inclusion of treatment interventions that occur frequently enough in workers' compensation system to indicate, in the absence of other data or information, a typical course of intervention. The Commission recognizes that there will be some injured workers who require less treatment, and other injured workers who require more treatment than is outlined in the LETG. The LETG serves as a guideline and should not be used as the sole reason for denial or requirement of treatment. The provision of specific services to an injured worker is dependent on the injured workers' diagnosis, and response to treatment. The new rule is adopted pursuant to the Texas Labor Code, sec.402.061, which authorizes the Commission to adopt rules necessary to administer the Act; the Texas Labor Code, sec.413.011, which authorizes the Commission to establish by rule medical policies and guidelines relating to necessary treatments for injuries designed to ensure the quality of medical care and to achieve effective medical cost control; and sec.413.013, which authorizes the Commission to establish by rule a program for prospective, concurrent, and retrospective review and resolution of a dispute regarding health care treatments and services; and to establish by rule a program for the systematic monitoring of the necessity of treatments administered and fees charged and paid for medical treatments or services, including the authorization of prospective, concurrent, or retrospective review under the medical policies of the Commission to ensure that the medical policies or guidelines are not exceeded. These statutory provisions clearly authorize the Commission to adopt a rule such as sec.134.1003 which includes guidelines relating to necessary treatments for injuries and promotes resolution of disputes regarding health care treatments and services. sec.134.1003.Lower Extremities Treatment Guideline. (a) Table of Contents. The following headings and corresponding subdivisions comprise a table of contents for this section: (1) Introduction - subsection (b): (A) Effective Date - subsection (b)(1); (B) Purpose - subsection (b)(2); (C) Goals - subsection (b)(3); (D) Development Process - subsection (b)(4); (E) Philosophy of Care - subsection (b)(5); (2) Role of the Treating Doctor (Primary Gatekeeper) - subsection (c): (A) Statutory Requirements - subsection (c)(1); (B) Primary Gatekeeper Responsibilities - subsection (c)(2); (C) Referrals - subsection (c)(3); (D) Diagnostics - subsection (c)(4); (E) Expectations and Compliance - subsection (c)(5); (3) Application Instructions for Involved Parties/Concepts and Governing Principles - subsection (d): (A) Health Care Provider - subsection (d)(1); (B) Insurance Carriers - subsection (d)(2); (C) Medical Review Division - subsection (d)(3); (D) Consulting or Peer Review Health Care Provider - subsection (d)(4); (E) Injured Worker - subsection (d)(5); (F) Employer - subsection (d)(6); (4) Ground Rules - subsection (e): (A) Introduction - subsection (e)(1); (B) Ground Rules - subsection (e)(2); (C) General Documentation Requirements - subsection (e)(3); (D) Documentation Requirements for Unrelated or Intercurrent Illness - subsection (e) (4); (5) Nonoperative Treatment Tables - subsection (f): (A) Introduction to Treatment Tables - subsection (f)(1); (B) Definition of Levels of Care - subsection (f)(2); (C) Foot - subsection (f)(3) (D) Ankle - subsection (f)(4); (E) Knee - subsection (f)(5); (F) Hip - subsection (f)(6); (G) Lower Extremity - subsection (f)(7); (6) Surgical Indicators - subsection (g): (A) Foot and Ankle - subsection (g)(1); (B) Knee - subsection (g)(2); (C) Hip - subsection (g)(3); (D) Lower Extremity - subsection (g)(4); (7) Glossary - subsection (h); and (8) Bibliography - subsection (i). (b) Introduction. (1) Effective Date. This Guideline shall become effective January 1, 1998. (2) Purpose. The purpose of this guideline is to clarify those services that are reasonable and medically necessary for treatment of lower extremity injuries for the injured workers of Texas. There may be injured workers who will require more or less treatment than is recommended in this guideline. This is a guideline and shall not be used as the sole reason for denial of treatments and services. (3) Goals. The primary goals of this guideline are: (A) to assist all parties with regard to the appropriate treatment and management of lower extremity injuries; (B) to establish elements against which aspects of care can be compared; (C) to establish a guideline to identify services that are reasonable and medically necessary for treatment of specific diagnoses; (D) to establish documentation standards which support the appropriateness of the level of service; and (E) to provide a mechanism of prospective, concurrent and retrospective review for efficient and effective health care utilization. (4) Development Process. The Texas Workers' Compensation Commission (TWCC), in conjunction with health care providers and other parties in the system, have developed clinical and diagnostic treatment guidelines. Three major components in the guideline development process are as follows. (A) Design and Methodology. A search of all 50 workers' compensation state agencies revealed that only a few had developed treatment guidelines. The format and design of these guidelines were mainly in narrative presentation. The focus of this treatment guideline is toward a matrix approach versus straight text. (B) Provider Work Group. Research into successful guidelines developed in the private sector identified that involvement from provider work groups achieves the best outcome regarding clinical policy development. (C) Public Evaluation. The evaluation of the developed guideline may be broad and include comments from employees, employers, health care providers and insurance carriers. (5) Philosophy of Care. The health care of the injured worker is a coordinated team effort. All parties, including employees, employers, health care providers, insurance carriers and the Texas Workers' Compensation Commission should promote quality health care, injury specific treatment and appropriateness of care. Communication between all parties must remain open in order to achieve rapid recovery from the effects of the injury. This communication should promote a timely return to modified or full duty work that takes into account the job demands and the functional capabilities of the injured worker. (c) Role of Treating Doctor (Primary Doctor/Gatekeeper). (1) Statutory Requirements. The following sections of the Texas Labor Code and specific Commission rules address key areas pertaining to those services that are reasonable and necessary for treatment of the lower extremity. (A) Section 408.021(a). An employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury as and when needed. The employee is specifically entitled to health care that: (i) cures or relieves the effects naturally resulting from the compensable injury; (ii) promotes recovery; or (iii) enhances the ability of the employee to return to or retain employment. (B) Section 408.021(b). Medical benefits are payable from the date of the compensable injury. (C) Section 408.021(c). Except in an emergency, all health care must be approved or recommended by the employee's treating doctor. (D) Section 408.025(b). The commission by rule shall adopt reasonable requirements for reports and records to be made available to other health care providers to prevent unnecessary duplication of tests and examinations. (E) Section 408.025(c). The treating doctor shall be responsible for maintaining efficient utilization of health care. (2) Treating Doctor (Primary Doctor/Gatekeeper) Responsibilities. (A) The role of the treating doctor is an important role which requires the treating doctor to monitor all health care services being provided for the injured worker. These responsibilities of the treating doctor are vital aspects of the goal to ensure that the injured worker receives quality health care. This monitoring extends to ensure: (i) the identification of the extent and severity of the injury initially; (ii) the appropriateness of all services; (iii) the relatedness of all services to the workers' compensation injury; (iv) separation and referral of non-related health care services for management by other health plans; (v) whether the treatment is duplicative, necessary and/or effective; (vi) the appropriate cost of the services; (vii) the quality of the treatment; and (viii) enhancement and promotion of effective communication among all involved parties. (B) Refer to sec.126.9 and sec.133.3 of this title (relating to Choice of Treating Doctor and Liability for Payment; and Responsibilities of Treating Doctor, respectively) for responsibilities of the treating doctor. (3) Referrals. The treating doctor is responsible for recommending timely and appropriate referrals. The treating doctor must clearly delineate the clinical rationale for all referrals. The documentation contained in the TWCC required reports should clearly outline whether the purpose of the referral is to corroborate the diagnosis and/or proposed course of treatment or to initiate ongoing treatment. Once a consultation or referral has occurred, the consulting or referral doctor shall submit a summary report or shall initiate a case management phone call back to the treating doctor. (4) Diagnostics. Diagnostic work should be performed in accordance with the recommended testing and timeframes contained in this guideline. If the need arises to deviate from the guideline, then a clinical rationale must be provided which adequately substantiates the need for this deviation. The need to repeat previously completed diagnostic procedures due to the quality of the study may trigger a review. All health care providers involved in the treatment of an injured worker must share copies of all diagnostic studies, films, and reports in order to avoid unnecessary duplication of services. Section 133.2 of this title (relating to Sharing Medical Reports and Test Results) addresses the need to share medical records, including diagnostic studies, to avoid duplication. Section 133.106 of this title (relating to Fair and Reasonable Fees for Required Reports and Records) addresses reimbursement for copies of records. (5) Expectation and Compliance. (A) All health care providers must encourage injured workers to be active participants in their health care treatment regimens and must communicate to the injured worker realistic expectations regarding the potential outcome of this treatment as the treatment relates to his or her physical functioning and/or ability to return to work. Therefore, documenting the injured worker's compliance with his or her treatment regimen is important when reporting the progress of his or her recovery. (B) Health care providers must explain to the injured worker in clear terms the extent and severity of the injury and the treatment needed. Health care providers must define the symptomatology that is directly and/or indirectly related to the injury and specify treatment not covered under workers' compensation. (d) Application Instructions for Involved Parties / Concepts and Governing Principles. (1) Health Care Provider. This guideline shall be used as a tool by the health care provider to establish the required elements to initiate and continue treatment. If a health care provider's treatment deviates from this guideline, documentation of the medical condition that specifically requires treatment outside the guideline parameters would be required to clearly delineate the need for the treatment. (A) This guideline identifies typical treatment based on normal tissue healing responses for the average injured worker. (B) This guideline recognizes that a subset of injured workers will be found to be outside the parameters of this guideline. If a health care provider's treatment deviates from this guideline, documentation would be required to clearly delineate the need for the treatment. (C) This guideline should be used as a tool which identifies the recommended treatment parameters for treatment of injured workers within the workers' compensation system. (D) This guideline identifies the need to provide documentation which clearly explains the reason for the treatment, the relatedness to the workers' compensation injury and alternative treatment. (E) The health care provider is responsible for educating the injured worker of health care treatment appropriate for the workers' compensation injury. (F) This guideline recommends early return to work of either full or modified job duties based upon the injured worker's functional capacity which includes ability and clinical status. (G) The health care provider is responsible for formulating a treatment plan and revising the treatment plan based on response to treatment. The treatment plan should be provided to the insurance carrier as early as possible. (2) Insurance Carriers. The insurance carrier shall use this guideline to compare treatment prospectively, concurrently and retrospectively with the predetermined elements contained in the guides. (A) This document and its parameters serve only as a guideline and shall not be used as the sole reason for denial of treatments and services. (B) This guideline provides a tool by which to monitor the injured worker's recovery process. (C) This guideline serves as a tool to assist the insurance carriers in the medical audit process. (D) This guideline shall not be used to direct care toward a specific health care discipline or to a specific type of treatment. The insurance carrier is responsible for providing their specific documentation and rationale if treatment is denied. This rationale may include elements of the guideline. Additional information regarding the rationale for denial of treatment may also be derived from the injured worker's medical records and from the professional opinion of a peer review, if utilized. (E) A subset of injured workers will be found to be outside the parameters of this guideline. If a health care provider's treatment deviates from this guideline, documentation would be required to clearly delineate the need for the treatment. (F) The insurance carrier is responsible for performing a focus review of injury. This focus review shall primarily consist of case management. The focus review must clarify and attempt to reach agreement that the proposed treatment is appropriate as early as possible. Concurrent case management and bill review activities should address and focus on: (i) adherence to treatment plans; (ii) clinical progress; (iii) return to work issues; (iv) medical necessity; (v) injured worker compliance with the treatment; (vi) services provided consistent with the treatment plan; (vii) response to treatment; (viii) improvement in injured workers' progress; (ix) recommendations for changes in treatment in situations where there is no compliance, plateau, and/or there is minimal or no progress; and (x) achievement of goals, improvement sooner than treatment plan indicated. (3) Medical Review Division. The Medical Review Division shall use the guideline as a tool for the basis of their administrative review of prospective, concurrent and retrospective treatment. This guideline shall also be used as a tool in conducting on- site and desk audits for both health care providers and insurance carriers. (4) Consulting or Peer Review Health Care Provider. This guideline shall be used as a reference in advising the Medical Review Division and to determine when the need for an unbiased medical opinion is indicated. The peer reviewer shall use his or her clinical expertise in conjunction with the clinical intent of the guideline to address issues. (5) Injured Worker. The injured worker must understand his or her role in complying with recommended treatment. The recovery and return to work process requires active cooperation of the injured worker. (6) Employer. The employer shall be responsible for reporting the compensable injury in a timely fashion to ensure that there is no delay in the treatment of the compensable injury. The employer shall be responsible for working with the insurance carrier and health care providers to ensure that the injured worker is afforded the opportunity to return to work in either a modified or full employment capacity as rapidly as possible within the medical limitations of his or her injury. (e) Ground Rules. (1) Introduction. Texas Workers' Compensation Commission treatment guidelines are not to be used as fixed treatment protocols. The guidelines reflect services that are reasonable and medically necessary for treatment of lower extremity injuries. The guidelines recognize that a subset of injured workers will be found to be outside the guidelines' parameters. However, cases exceeding the guidelines' level of treatment shall be subject to more careful scrutiny and review and shall require documentation of the special circumstances justifying that treatment. The guidelines should not be seen as prescribing the type, frequency, or duration of treatment. Treatment must be based on the injured worker's need and the doctor's professional judgment. (2) Ground Rules. (A) Notwithstanding any other provision of this rule, treatment of a work related injury must be: (i) adequately documented; (ii) evaluated for effectiveness and modified based on clinical changes; (iii) provided in the least intensive setting; (iv) cost effective; (v) consistent with this guideline which may include providing a documented clinical rationale for deviation from this guideline; (vi) objectively measured and demonstrate functional gains; and (vii) consistent in demonstrating ongoing progress in the recovery process by appropriate re-evaluation of the treatment. (B) Communication between all health care providers involved in treating the injured worker must ensure that all previous treatment and diagnostic tests are considered when developing a treatment plan. All reports and records shall be made available to all health care providers to prevent unnecessary duplication of tests and examinations. (Refer to subsection (c)(2), (3), and (4) of this section.) (C) Patient education is an essential component in ensuring patient compliance to all treatment. Education is essential for the active cooperation of the patient in all aspects of health care and as a means to prevent re-injury. The patient must understand his or her role in the recovery and return to work processes. (D) All parties in the workers' compensation system should work together to ensure that the injured worker returns to work at the earliest medically appropriate time. Return-to-work is an important therapeutic approach which benefits the injured worker. The health care provider shall communicate with the injured worker, employer and the insurance carrier to coordinate a successful return to work. (E) The level of service shall be the same as the health care provider's usual and customary level of service regardless of the payor system. (F) Although not the typical course of treatment, there may be circumstances in which the injured worker may move between levels of care or utilize interventions in more than one level of care simultaneously, depending on clinical indicators. (G) All health care providers treating an injured worker are responsible for substantiating in their documentation the level of service for which they request reimbursement. All payors have the responsibility to review all documentation submitted as the basis for the treatment and services provided. (H) Treatment durations are cumulative; however it may not always be necessary to use full durations for any given level of care. (I) Any new treatment must meet acceptable standards of care (as defined the Glossary-subsection (h) of this section) and may be subject to review by Texas Workers' Compensation Commission. (J) Preauthorization of any treatments or services shall be as required in the Commission's preauthorization rule. (K) When the injured worker displays signs and symptoms which may require further evaluation by a Qualified Mental Health Provider, refer to sec.134.1000 of this title (relating to Mental Health Treatment Guideline) for parameters regarding documentation, evaluation and treatment. (L) When an injured worker must travel in order to obtain appropriate and necessary medical care for a compensable injury, reimbursement for travel expenses is governed by sec.134.6 of this title (relating to Travel Expenses). (3) General Documentation Requirements. (A) The health care provider's documentation is vital as an information source of the injured worker's injury and treatment, and also provides information which impacts income benefits. For these reasons, many of the Commission's rules have set time requirements for submission of required reports. For more information, refer to Chapter 133 Subchapter B of this title, (relating to Required Reports). (B) Documentation shall be provided by the health care provider to determine the level of care to be provided and the necessity for that care. The elements of the documentation may include: (i) a description of the injury, including the events surrounding that injury and the extent and severity of that injury; (ii) a description of any pre-existing condition(s), complicating conditions and/or any non-related conditions; (iii) a treatment plan, including proposed methods of treatment, expected outcomes, and probable duration of treatment; (iv) updates to the treatment plan as needed, including the clinical progress of the injured worker, and any revisions needed to the treatment plan based on the injured worker's response to treatment; (v) education/information provided to the injured worker regarding his or her injury and treatment plan, and the injured worker's compliance with this treatment plan; and (vi) documentation substantiating the need for deviation from the guideline, if necessary. (C) Permanent impairment for compensable injuries in workers' compensation shall be limited to those injuries and illnesses for which doctors are able to demonstrate objective findings. (D) The need for emergency treatment must be based on the doctor's professional judgment. This documentation must provide a clear explanation of the nature of the emergency, the injured worker's medical condition, complications which could occur, as well as any irreversible conditions which occurred or could occur as a result of the emergency. (4) Documentation Requirements for Unrelated or Intercurrent Illness. Situations may arise where certain medical conditions need to be delineated or clarified prior to intervention. Treatment administered to other body areas (not a part of the original injury) or for a pre-existing medical condition(s) must be identified and the relation of this treatment to the compensable injury must be documented by the health care provider. If this treatment appears not to be related to the compensable injury, then the health care provider should inform the injured worker that this treatment may not be covered by the insurance carrier. The health care provider should clearly document the rationale for such treatment and its relation to the compensable injury. (f) Nonoperative Treatment Tables (Refer to subsection (g) of this section for Surgical Indications). (1) Introduction to Nonoperative Treatment Table. The treatments, set out in the following tables, represent treatment that is reasonable and medically necessary for a given period of time according to the diagnosis(es). The "Treatment Interventions" sections and "Diagnostic Procedures" sections of the Treatment Tables are in alphabetical order and do not infer numerical sequence. There will be some injured workers who require less treatment, and other injured workers who require more treatment than is outlined. This document serves as a guideline and should not be used as the sole reason for denial or requirement of treatment. The provision of specific services to an injured worker is dependent on the injured worker's diagnosis, and response to treatment. (2) Definition of Levels of Care. (A) Primary Level of Care. This level of care is generally considered to be appropriate for injured workers immediately following the compensable injury; however, the injured worker in this level of care may also be an early postoperative patient or may be experiencing an acute exacerbation of his or her chronic condition. Since partial or total cessation of work over a brief period of time is also considered to be part of the primary level of care, further treatment by a health care provider may not be considered necessary at this level of care. Little or no deconditioning has occurred due to the injury, immobilization or decreased activity. The goals are to prevent disease, alleviate or minimize the effects of the illness or injury and to maintain function, thereby reducing lost time and enabling return to work in some capacity. (B) Secondary Level of Care. This level of care is for those injured workers who have not returned to productivity after the normal healing process. This level of care is designed to facilitate return to productivity, including return to work in either full or modified duty, before the onset of chronic disability. This level of care may also be indicated for the injured worker whose physical capacity to work still does not meet the job requirements for heavy physical labor after adequate treatment, thereby causing an inability to return to full duty. This level of care is individualized, time limited and of limited intensity. The injured worker has a history of a limited-to-good response to early primary treatment with persistent symptoms limiting activities of daily living. The objective physical examination demonstrates findings suggestive of early deconditioning including decreased range of motion and/or strength and limitation of activities of daily living. Evidence of mental health or psychosocial barriers may be present which impede the injured worker's clinical progress. (C) Tertiary Level of Care. This level of care is interdisciplinary, individualized, coordinated, and intensive. It is designed for the injured worker who demonstrates physical and psychological changes consistent with chronic disability. In general, differentiation from secondary treatment includes medical direction, intensity of services, severity of injury, individualized programmatic protocols with integration of physician, mental health, and disability or pain management services and specificity of physical/psychosocial assessment. This level includes a documented history of persistent failure to respond to nonoperative or operative treatment which surpasses the usual healing period for that injury. Psychosocial issues such as substance abuse, affective disorders, and other psychological disorders may be present. This level of care is indicated by a documented inhibition of physical functioning evidenced by pain sensitivity, loss of sensation, and nonorganic signs such as fear which produce a physical inhibition or limited response to reactivation treatment. This level of care may also be indicated for the injured worker whose physical capacity to work still does not meet the job requirements for heavy physical labor after adequate treatment, thereby causing an inability to return to full duty. This situation would be evidenced by an excessive transitional period of light duty or significant episodes of lost work time due to the need for continued medical treatment. This level of care is also indicated for those injured workers who cannot tolerate either primary or secondary levels of care. (D) Criteria to Distinguish Between Secondary and Tertiary Level of Care. Many factors may determine the choice between secondary and tertiary levels of care. In general, if lower cost secondary treatment can be effective, this level of care is preferred over the more expensive tertiary care. However, if the documented condition of the injured worker indicates the need for more intensive treatment, the tertiary level of care may be more appropriate. Key factors in determining the need for secondary versus tertiary care include: (i) the time elapsed since injury; (ii) the presence of psychosocial barriers to recovery such as depression, substance abuse, personality disorder, etc., and the severity of these barriers; (iii) the lack of responsiveness to previously attempted treatment; (iv) the severity of physical/functional deconditioning; and/or (v) socioeconomic barriers to recovery. (3) Foot Treatment Tables. (A) Diagnosis: Foot: Plantar Fasciitis; Primary Level of Care. Figure 1: 28 TAC sec.134.1003 (f)(3)(A) (B) Diagnosis: Foot: Plantar Fasciitis; Secondary Level of Care. Figure 2: 28 TAC sec.134.1003 (f)(3)(B) (C) Diagnosis: Foot: Plantar Fasciitis; Tertiary Level of Care. Figure 3: 28 TAC sec.134.1003 (f)(3)(C) (4) Ankle Treatment Tables. (A) Diagnosis: Ankle: Musculotendinitis; Bursitis/Tenosynovitis; Primary Level of Care. Figure 4: 28 TAC sec.134.1003 (f)(4)(A) (B) Diagnosis: Ankle: Musculotendinitis; Bursitis/Tenosynovitis; Secondary Level of Care. Figure 5: 28 TAC sec.134.1003 (f)(4)(B) (C) Diagnosis: Ankle: Musculotendinitis; Bursitis/Tenosynovitis; Tertiary Level of Care. Figure 6: 28 TAC sec.134.1003 (f)(4)(C) (D) Diagnosis: Ankle: Sprain/Strain Tear; Primary Level of Care. Figure 7: 28 TAC sec.134.1003 (f)(4)(D) (E) Diagnosis: Ankle: Sprain/Strain Tear; Secondary Level of Care. Figure 8: 28 TAC sec.134.1003 (f)(4)(E) (F) Diagnosis: Ankle: Sprain/Strain Tear; Tertiary Level of Care. Figure 9: 28 TAC sec.134.1003 (f)(4)(F) (G) Diagnosis: Ankle Fracture; Primary Level of Care. Figure 10: 28 TAC sec.134.1003 (f)(4)(G) (H) Diagnosis: Ankle Fracture; Secondary Level of Care. Figure 11: 28 TAC sec.134.1003 (f)(4)(H) (I) Diagnosis: Ankle Fracture; Tertiary Level of Care. Figure 12: 28 TAC sec.134.1003 (f)(4)(I) (5) Knee Treatment Tables. (A) Diagnosis: Knee: Musculotendinitis; Bursitis/Tenosynovitis; Primary Level of Care. Figure 13: 28 TAC sec.134.1003 (f)(5)(A) (B) Diagnosis: Knee: Musculotendinitis; Bursitis/Tenosynovitis; Secondary Level of Care. Figure 14: 28 TAC sec.134.1003 (f)(5)(B) (C) Diagnosis: Knee: Musculotendinitis; Bursitis/Tenosynovitis; Tertiary Level of Care. Figure 15: 28 TAC sec.134.1003 (f)(5)(C) (D) Diagnosis: Knee Meniscus Tear Bursitis/Tenosynovitis; Primary Level of Care. Figure 16: 28 TAC sec.134.1003 (f)(5)(D) (E) Diagnosis: Knee Meniscus Tear Bursitis/Tenosynovitis; Secondary Level of Care. Figure 17: 28 TAC sec.134.1003 (f)(5)(E) (F) Diagnosis: Knee Meniscus Tear Bursitis/Tenosynovitis; Tertiary Level of Care. Figure 18: 28 TAC sec.134.1003 (f)(5)(F) (G) Diagnosis: Knee: Sprain/Strain, Tear; Primary Level of Care. Figure 19: 28 TAC sec.134.1003 (f)(5)(G) (H) Diagnosis: Knee: Sprain/Strain, Tear; Secondary Level of Care. Figure 20: 28 TAC sec.134.1003 (f)(5)(H) (I) Diagnosis: Knee: Sprain/Strain, Tear; Tertiary Level of Care. Figure 21: 28 TAC sec.134.1003 (f)(5)(I) (J) Diagnosis: Patellar Fracture; Primary Level of Care. Figure 22: 28 TAC sec.134.1003 (f)(5)(J) (K) Diagnosis: Patellar Fracture; Secondary Level of Care. Figure 23: 28 TAC sec.134.1003 (f)(5)(K) (L) Diagnosis: Patellar Fracture; Tertiary Level of Care. Figure 24: 28 TAC sec.134.1003 (f)(5)(L) (6) Hip Treatment Tables. (A) Diagnosis: Hip: Musculotendinitis; Bursitis/Tenosynovitis; Primary Level of Care. Figure 25: 28 TAC sec.134.1003 (f)(6)(A) (B) Diagnosis: Hip: Musculotendinitis; Bursitis/Tenosynovitis; Secondary Level of Care. Figure 26: 28 TAC sec.134.1003 (f)(6)(B) (C) Diagnosis: Hip: Musculotendinitis; Bursitis/Tenosynovitis; Tertiary Level of Care. Figure 27: 28 TAC sec.134.1003 (f)(6)(C) (D) Diagnosis: Hip: Fracture of Hip Joint; Primary Level of Care. Figure 28: 28 TAC sec.134.1003 (f)(6)(D) (E) Diagnosis: Hip: Fracture of Hip Joint; Secondary Level of Care. Figure 29: 28 TAC sec.134.1003 (f)(6)(E) (F) Diagnosis: Hip: Fracture of Hip Joint; Tear; Tertiary Level of Care. Figure 30: 28 TAC sec.134.1003 (f)(6)(F) (7) Lower Extremity Treatment Tables. (A) Diagnosis: Neuropathy; Primary Level of Care. Figure 31: 28 TAC sec.134.1003 (f)(7)(A) (B) Diagnosis: Neuropathy; Secondary Level of Care. Figure 32: 28 TAC sec.134.1003 (f)(7)(B) (C) Diagnosis: Neuropathy; Tertiary Level of Care. Figure 33: 28 TAC sec.134.1003 (f)(7)(C) (D) Diagnosis: Fractures; Primary Level of Care. Figure 34: 28 TAC sec.134.1003 (f)(7)(D) (E) Diagnosis: Fractures; Secondary Level of Care. Figure 35: 28 TAC sec.134.1003 (f)(7)(E) (F) Diagnosis: Fractures; Tertiary Level of Care. Figure 36: 28 TAC sec.134.1003 (f)(7)(F) (G) Diagnosis: Avascular Necrosis; Primary Level of Care. Figure 37: 28 TAC sec.134.1003 (f)(7)(G) (H) Diagnosis: Avascular Necrosis; Secondary Level of Care. Figure 38: 28 TAC sec.134.1003 (f)(7)(H) (I) Diagnosis: Avascular Necrosis; Tertiary Level of Care. Figure 39: 28 TAC sec.134.1003 (f)(7)(I) (J) Diagnosis: Intra-Articular Pathology, Traumatic Arthritis; Primary Level of Care. Figure 40: 28 TAC sec.134.1003 (f)(7)(J) (K) Diagnosis: Intra-Articular Pathology, Traumatic Arthritis; Secondary Level of Care. Figure 41: 28 TAC sec.134.1003 (f)(7)(K) (L) Diagnosis: Intra-Articular Pathology, Traumatic Arthritis; Tertiary Level of Care. Figure 42: 28 TAC sec.134.1003 (f)(7)(L) (M) Diagnosis: Lacerations: Tendons, Nerves; Primary Level of Care. Figure 43: 28 TAC sec.134.1003 (f)(7)(M) (N) Diagnosis: Lacerations: Tendons, Nerves; Secondary Level of Care. Figure 44: 28 TAC sec.134.1003 (f)(7)(N) (O) Diagnosis: Lacerations: Tendons, Nerves; Tertiary Level of Care. Figure 45: 28 TAC sec.134.1003 (f)(7)(O) (P) Diagnosis: Crush Injuries; Primary Level of Care. Figure 46: 28 TAC sec.134.1003 (f)(7)(P) (Q) Diagnosis: Crush Injuries; Secondary Level of Care. Figure 47: 28 TAC sec.134.1003 (f)(7)(Q) (R) Diagnosis: Crush Injuries; Tertiary Level of Care. Figure 48: 28 TAC sec.134.1003 (f)(7)(R) (S) Diagnosis: Myofascial Pain Syndrome; Primary Level of Care. Figure 49: 28 TAC sec.134.1003 (f)(7)(S) (T) Diagnosis: Myofascial Pain Syndrome; Secondary Level of Care. Figure 50: 28 TAC sec.134.1003 (f)(7)(T) (U) Diagnosis: Myofascial Pain Syndrome; Tertiary Level of Care. Figure 51: 28 TAC sec.134.1003 (f)(7)(U) (g) Surgical Indications. A pre-surgical mental health evaluation may be obtained. Please refer to sec.134.1000 of this title (relating to Mental Health Treatment Guideline) for parameters regarding documentation, evaluation and treatment. Indications for surgery include but are not limited to the following list. (1) Ankle and Foot. (A) Musculotendinitis, Bursitis/Tenosynovitis. Indications for surgery include but are not limited to: (i) failure to respond to non-operative treatment over a period of three months; (ii) no improvement after a total of two corticosteroid injections; (iii) early surgical intervention (before three months), which may be considered if the patient is severely disabled; and (iv) infection is present. (B) Ligament/Tendon, Injury (Sprain/Strain). Indications for surgery include but are not limited to: (i) failure to respond to non-operative treatment; and (ii) recurrent sprain with documented instability. (C) Fracture/Dislocation. Indications for surgery include but are not limited to: (i) displaced fracture and/or dislocation requiring reduction and fixation; (ii) comminuted displaced fracture requiring reduction and fixation; (iii) open fracture; and (iv) nonunion/avascular necrosis (AVN) of fracture. (D) Arthralgia. (i) Avascular Necrosis/Osteonecrosis, Osteochondritis Dissecans (ii) Traumatic Arthritis (iii) Chronic pain (more than 6 weeks), swelling unresponsive to conservative care (2) Knee. (A) Musculotendinitis, Bursitis/Tenosynovitis. Indications for surgery include but are not limited to: (i) failure to respond to non-operative treatment over a period of three months; (ii) early surgical intervention (before three months), which may be considered if the patient is severely disabled; (iii) infection is present. (B) Meniscus Tear. Indications for surgery include but are not limited to: (i) mechanical symptoms (locking, giving way, etc.); and (ii) failure to respond to conservative care. (C) Ligament/Tendon Injury (Sprain/Strain). Indications for surgery include but are not limited to: (i) failure to respond to conservative care; and (ii) instability. (D) Patellar Fracture. Indication for surgery include but are not limited to disruption of quad mechanism. Also see paragraph (4)(B) of this subsection. (3) Hip. (A) Musculotendinitis, Bursitis/Tenosynovitis. Indications for surgery include but are not limited to: (i) failure to respond to non-operative treatment over a period of three months; (ii) no improvement after a total of three corticosteroid injections; (iii) early surgical intervention (before three months), which may be considered if the patient is severely disabled; and (iv) infection is present. (B) Sprain/Strain. Indications for surgery include but are not limited to failure to respond to conservative care. (C) Fracture. Displaced fracture except avulsion fractures of greater trochanter and lesser trochanter. Indications for surgery include but are not limited to: (i) nonunion of fracture; and (ii) open fracture. (D) Avascular Necrosis. Indications for surgery include but are not limited to failure to respond to conservative care. (E) Degenerative Arthritis. Indications for surgery include but are not limited to failure to respond to conservative care. (4) Lower Extremity. (A) Nerve Compression (Compressive Neuropathy). Indications for surgery include but are not limited to: (i) positive physical findings and symptoms that are persistent despite conservative management; and (ii) traumatic neuropathy with scarring. (B) Fracture: Femur, Tibia, Tarsal & Metatarsal. Indications for surgery include but are not limited to: (i) displaced fracture and/or dislocation; (ii) open fracture; and (iii) nonunion of fracture. (C) Arthropathy. Indications for surgery include but are not limited to: (i) pain over a period of three months; (ii) articular incongruity; and (iii) mechanical symptoms. (D) Intra-articular Pathology; Traumatic Arthritis: Pelvis, Thigh, Knee, Lower leg, Ankle and Foot. Indications for surgery include but are not limited to: (i) persistent synovitis unresponsive to conservative care over a period of three months; (ii) mechanical symptoms (locking, giving way, etc.); and (iii) painful traumatic arthritis corroborated by imaging study (CT/MRI, Tech 99). (E) Joint Instability: Pelvis, Knee, Ankle and Foot; Indications for surgery include, but are not limited to repeated episodes of instability despite conservative therapy. (F) Lacerations; Tendons and Nerves: Hip, Thigh, Knee, Lower leg, Ankle and Foot. Indications for surgery include but are not limited to: (i) complete laceration; (ii) partial laceration with disruption of function; and (iii) contaminated wound. (G) Crush Injuries: Hip, Thigh, Knee, Lower Leg, Foot and Toes. Indications for surgery include but are not limited to: (i) compartment syndrome; and (ii) open wounds requiring debridement. (h) Glossary. (1) Acceptable standards of care. (A) Standard - something established by authority, custom, or general consent as a model or example; the generally accepted norm for quality and quantity. (B) Acceptable standards of care - outlines of the types of tests and treatments which are established as normal and warranted for a specific type of injury. (2) Assessment/Evaluation - the act or process of inspecting or testing for evidence of injury, disease or abnormality. (3) Chronic pain management - a program which provides coordinated, goal- oriented, interdisciplinary team services to reduce pain, improve functioning, and decrease the dependence on the health care system of persons with chronic pain syndrome. (4) Clinical progress versus lack of clinical progress. (A) Clinical progress - documented improvement in the condition of the injured worker, in response to the injured worker's current treatment program. (B) Lack of clinical progress - documented absence of change in the condition of the injured worker over a period of time of no less than one month, requiring re-evaluation of the injured worker's condition and re-evaluation of the current treatment program. (5) Consulting doctor - a doctor who provides an opinion or advice regarding the evaluation and/or management of a specific problem, as requested by the treating doctor, the Commission, or the insurance carrier. A consulting doctor may only initiate diagnostic and/or therapeutic services with approval from the treating doctor (see the definition of "referral doctor" in paragraph (31) of this subsection). (6) Denial parameters - a set of established elements or boundaries beyond which testing or treatment may be denied. (7) Diagnosis - the art or act of identifying a disease or injury from evaluation of its signs and symptoms. (8) Diagnostic tests - objective studies performed to assist in identifying a disease, injury, or abnormality. (9) Doctor - a doctor of medicine, osteopathic medicine, optometry, dentistry, podiatry, or chiropractic who is licensed and authorized to practice. (10) Examination - the act or process of inspecting or testing for evidence of disease, injury, or abnormality. (11) Focus review - to critically examine the prospective, concurrent, and retrospective care received by the injured worker as related to the compensable injury. (12) Frequency of intervention - the number of occurrences in a specified time in which the health care provider acts to treat the injured worker. (13) Functional capacity evaluation - a battery of tests administered and evaluated to determine the injured worker's ability to perform tasks related to both his or her daily activities and his or her job performance. This evaluation consists of the following elements: (A) a physical examination and neurological evaluation which includes an assessment of the physical appearance of the injured worker, flexibility of the extremity joint or spinal region, posture and deformities, vascular integrity, the presence or absence of sensory deficit, muscle strength and reflex symmetry; (B) a physical capacity evaluation which includes quantitative measurements of range of motion and muscular strength and endurance; and (C) a dynamic functional abilities test which includes activities of daily living, hand function tests, cardiovascular endurance tests, and static positional tolerance. (14) Gatekeeper - the doctor primarily responsible for the employee's health care for an injury (synonymous with the terms "treating doctor" and "primary gatekeeper"). (15) Health care facility - means a hospital, emergency clinic, outpatient clinic, or other facility providing health care. (16) Health Care Practitioner. (A) an individual who is licensed to provide or render and provides or renders health care; or (B) a non-licensed individual who provides or renders health care under the direction or supervision of a doctor. (17) Health care provider - a health care facility or health care practitioner. (18) Impairment - any anatomic or functional abnormality or loss existing after maximum medical improvement that results from a compensable injury and is reasonably presumed to be permanent. (19) Interdisciplinary programs - programs in which the delivery of services is provided by more than one type of health care service (e.g., occupational therapy, physical therapy, counseling services, medical services) and in which there is a coordination between the disciplines regarding the care plan and the delivery of care to the injured worker. This type of program includes work hardening, outpatient medical rehabilitation and chronic pain management. (20) Intervention - the act or fact of interfering with a condition to modify it or with a process to change its course. (21) Level of service - refers to primary, secondary, or tertiary care. (22) Maximum Medical Improvement (MMI) - the earlier of the following two items: (A) the earliest date after which, based on reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated; or (B) the expiration of 104 weeks from the date on which income benefits begin to accrue. (23) Medical necessity - the determination that the tests or treatment provided is required based on the presenting signs and symptoms. (24) Objective findings - signs, or test results that can be measured or quantified or are otherwise perceptible to persons other than the affected individual. A medical finding of impairment resulting from a compensable injury, based on competent objective medical evidence, that is independently confirmable by a doctor, including a designated doctor, without reliance on the subjective symptoms perceived by the employee. (25) Outpatient medical rehabilitation - a program of coordinated and integrated services, evaluation, and/or treatment with emphasis on improving the functional levels of the persons served. The program is interdisciplinary in nature and is applicable to those persons who have severe functional limitations of recent onset or recent regression or progression or those persons who have not had prior exposure to rehabilitation. Services may be directed toward the development and/or maintenance of the optimal level of functioning and community integration of the persons served. (26) Primary gatekeeper - the doctor primarily responsible for the employee's health care for an injury (synonymous with the terms "treating doctor" and "primary gatekeeper"). (27) Primary/secondary/tertiary levels of care. (A) Primary Level of Care. This level of care is generally considered to be appropriate for injured workers immediately following the compensable injury; however, the injured worker in this level of care may also be an early postoperative patient or may be experiencing an acute exacerbation of his or her chronic condition. Since partial or total cessation of work over a brief period of time is also considered to be part of the primary level of care, further treatment by a health care provider may not be considered necessary at this level of care. Little or no deconditioning has occurred due to the injury, immobilization or decreased activity. The goals are to prevent disease, alleviate or minimize the effects of the illness or injury and to maintain function, thereby reducing lost time and enabling return to work in some capacity. (B) Secondary Level of Care. This level of care is for those injured workers who have not returned to productivity after the normal healing process. This level of care is designed to facilitate return to productivity, including return to work in either full or modified duty, before the onset of chronic disability. This level of care may also be indicated for the injured worker whose physical capacity to work still does not meet the job requirements for heavy physical labor after adequate treatment, thereby causing an inability to return to full duty. This level of care is individualized, time limited and of limited intensity. The injured worker has a history of a limited-to-good response to early primary treatment with persistent symptoms limiting activities of daily living. The objective physical examination demonstrates findings suggestive of early deconditioning including decreased range of motion and/or strength and limitation of activities of daily living. Evidence of mental health or psychosocial barriers may be present which impede the injured worker's clinical progress. (C) Tertiary Level of Care. This level of care is interdisciplinary, individualized, coordinated, and intensive. It is designed for the injured worker who demonstrates physical and psychological changes consistent with chronic disability. In general, differentiation from secondary treatment includes medical direction, intensity of services, severity of injury, individualized programmatic protocols with integration of physician, mental health, and disability or pain management services and specificity of physical/psychosocial assessment. This level includes a documented history of persistent failure to respond to nonoperative or operative treatment which surpasses the usual healing period for that injury. Psychosocial issues such as substance abuse, affective disorders, and other psychological disorders may be present. This level of care is indicated by a documented inhibition of physical functioning evidenced by pain sensitivity, loss of sensation, and nonorganic signs such as fear which produce a physical inhibition or limited response to reactivation treatment. This level of care may also be indicated for the injured worker whose physical capacity to work still does not meet the job requirements for heavy physical labor after adequate treatment, thereby causing an inability to return to full duty. This situation would be evidenced by an excessive transitional period of light duty or significant episodes of lost work time due to the need for continued medical treatment. This level of care is also indicated for those injured workers who cannot tolerate either primary or secondary levels of care. (28) Proper clinical documentation - written records which meet the requirements outlined by statute and rule and which convey the following information to the required parties: (A) a description of the injury, including the extent, severity and events surrounding that injury; (B) a description of any pre-existing, complicating and/or any non-related conditions; (C) a treatment plan, including proposed methods, frequency, and probable duration of treatment, with expected outcomes; (D) updates to the treatment plan as needed, including the clinical progress of the injured worker and any revisions needed to the treatment plan in light of the injured worker's response to treatment; (E) education/information provided to the injured worker regarding his or her injury and treatment plan, and the injured worker's compliance with this treatment plan; and (F) documentation substantiating the need for deviation from the guideline, if necessary. (29) Reason for denial - refer to paragraph (6) of this subsection on denial parameters. (30) Referral - the process of directing or redirecting (as a medical case or a patient) to an appropriate specialist or agency for definitive treatment. (31) Referral doctor - a consulting doctor who initiates health care treatments at the request or with the consent of the treating doctor. (32) Secondary treatment - refer to paragraph (27)(B) of this subsection regarding secondary level of care. (33) Self-referral - the direction of a patient to another doctor, institution or facility wherein the referring doctor has a financial or conflict of interest element. (34) Sprain - an injury to a ligament. (A) Mild (Grade 1) - only a few fibers are torn; ligament is mostly intact and the joint is stable. (B) Moderate (Grade 2) - more fibers are torn, resulting in some instability with abnormal joint motion and some functional loss. (C) Severe (Grade 3) - ligaments are completely disrupted and instability may be severe (synonymous with marked). (35) Strain - an injury to a muscle. (A) Mild (Grade 1) - only a few fibers are torn; muscle is mostly intact and functional. (B) Moderate (Grade 2) - more muscle fibers are torn resulting in muscle pain with contraction. (C) Severe (Grade 3) - tendons are completely disrupted, extreme pain and loss of use of muscle. (36) Subjective complaints - report of signs or symptoms, perceivable only by the injured employee, relating to the injury and which cannot be independently verified or confirmed by recognized laboratory or diagnostic tests or signs observable by physical examination. (37) Time limited - a specific duration of clock or calendar time which is not exceeded on a routine basis. (38) Treating doctor - the doctor primarily responsible for the employee's health care for an injury (synonymous with the terms "primary gatekeeper" and "gatekeeper"). (39) Treatment duration - calendar time allowed for treatment for a specific level of care. (40) Treatment plan - a written document which must contain the following components: (A) type of intervention/treatment modality; (B) frequency of treatment; (C) expected duration of treatment; (D) expected clinical response to treatment; and (E) specification of a re-evaluation timeframe. (41) Work conditioning - a highly structured, goal-oriented, individualized treatment program using real or simulated work activities in conjunction with conditioning tasks. Work conditioning is a single disciplinary approach. (42) Work hardening - a highly structured, goal-oriented, individualized treatment program designed to maximize the ability of the persons served to return to work. Work hardening programs are interdisciplinary in nature with a capability of addressing the functional, physical, behavioral, and vocational needs of the injured worker. Work hardening provides a transition between management of the initial injury and return to work while addressing the issues of productivity, safety, physical tolerances, and work behaviors. Work hardening programs use real or simulated work activities in a relevant work environment in conjunction with physical conditioning tasks. These activities are used to progressively improve the biomechanical, neuromuscular, cardiovascular/metabolic, behavioral, attitudinal and vocational functioning of the persons served. (i) Bibliography. The following items comprise a bibliography for this guideline. (1) The American Academy of Orthopaedic Surgeons. REVISED CLINICAL POLICY DRAFTS. May 1995. (2) The American Academy of Orthopaedic Surgeons. PHASE ONE DRAFT. National Orthopaedic Leadership Conference. May 1995. (3) The American Academy of Orthopaedic Surgeons. ORTHOPAEDIC KNOWLEDGE UPDATE: FOOT AND ANKLE. 1994. (4) The American Academy of Orthopaedic Surgeons. ORTHOPAEDIC KNOWLEDGE UPDATE: COMPREHENSIVE SYLLABUS. Vol. 5. 1996. (5) Bates, Barbara; Bickley, Lynn S.; and Hoekelman, Robert A. PHYSICAL EXAMINATION AND HISTORY TAKING. Sixth Edition. L.B. Lippincott Company. 1995. (6) Cantu, Robert I. and Grodin, Alan J. MYOFASCIAL MANIPULATION: THEORY AND CLINICAL APPLICATION. Aspen Publishers, Inc. 1992. (7) Gilkey, David P. and Williams, Holly A. "Ergonomics and CTDs: The Problems, Causes, Enforcement and Solutions." ACA JOURNAL OF CHIROPRACTIC. August 1994. (8) Grana, William A., MD; and Kalenak, Alexander, MD, Editors. CLINICAL SPORTS MEDICINE. W.B. Saunders Company. 1991. (9) Greenman, Philip E. PRINCIPLES OF MANUAL MEDICINE. Williams and Wilkins. (10) Hammer, Warren I. FUNCTIONAL SOFT TISSUE EXAMINATION AND TREATMENT BY MANUAL METHODS: THE EXTREMITIES. Aspen Publishers, Inc. 1991. (11) Hoppenfeld, Stanley, MD. PHYSICAL EXAMINATION OF THE SPINE AND EXTREMITIES. Appleton-Century-Crofts. 1976. (12) Jaskoviak, Paul A. and Schafer, R.C. APPLIED PHYSIOTHERAPY: PRACTICAL CLINICAL APPLICATIONS WITH EMPHASIS ON THE MANAGEMENT OF PAIN AND RELATED SYNDROMES. Second Edition. The American Chiropractic Association. (13) Lea & Febiger, Publisher. ARTHRITIS AND ALLIED CONDITIONS: A TEXTBOOK OF RHEUMATOLOGY. Vol. 12. Twelfth Edition. 1993. (14) Mariano, Kurt A., McDougle, Mark A., and Tanksley, Gary W. "Double Crush Syndrome: Chiropractic Care of an Entrapment Neuropathy." JOURNAL OF MANIPULATIVE AND PHYSIOLOGICAL THERAPEUTICS. Vol. 14, No. 4. May, 1991. (15) Mior, Silvano A. and Dombrowsky, N. "Scapholunate Failure: A Long-Term Clinical Follow-Up." JOURNAL OF MANIPULATIVE AND PHYSIOLOGICAL THERAPEUTICS. Vol. 15, No. 4. May, 1992. (16) Reed, Presley, MD. THE MEDICAL DISABILITY ADVISOR: WORKPLACE GUIDELINES FOR DISABILITY DURATION. Second Edition. LRP Publications. 1994. (17) Rogoff, Joseph B., Editor. MANIPULATION, TRACTION AND MASSAGE. Second Edition. Williams & Wilkins. (18) Schafer, R.C. CHIROPRACTIC MANAGEMENT OF SPORTS AND RECREATIONAL INJURIES. Williams & Wilkins. (19) Sin, Y.M., Sedgewick, A.D., Muckay, A.R., Bates, M.B., and Willoughby, D.A. "Effect of Electric Acupuncture Stimulation on Acute Inflammation." AMERICAN JOURNAL OF ACUPUNCTURE. Vol 11, No. 4. October-December, 1983. (20) Steiner, Charles. "Osteopathic Manipulative Treatment: What Does It Really Do?" THE JOURNAL OF THE AMERICAN OSTEOPATHIC ASSOCIATION. Vol. 94, No. 1. January, 1994. (21) Urist, Marshall R., Editor-in-Chief. CLINICAL ORTHOPAEDICS AND RELATED RESEARCH. Number Two Hundred Eighty-Two. J.B. Lippincott Co. 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 November 12, 1997. TRD-9715167 Susan M. Cory General Counsel Texas Workers' Compensation Commission Effective date: January 1, 1998 Proposal publication date: September 5, 1997 For further information, please call: (512) 440-3972 CHAPTER 147.Dispute Resolution-Agreements, Settlements, Commutations 28 TAC sec.147.11 The Texas Workers' Compensation Commission (the commission) adopts an amendment to sec.147.11, concerning notification of commission of proposed judgments and settlements, without changes to the proposed text as published in the September 26, 1997, issue of the Texas Register (22 TexReg 9635). As required by the Government Code, sec.2001.033(1), the Commission's reasoned justification for this rule is set out in this order which includes the preamble, which in turn includes the rule. The reasoned justification is contained in this preamble, and throughout this preamble, including how and why the Commission reached the conclusions it did, why the rule is appropriate, the factual, policy, and legal bases for the rule, a restatement of the factual basis for the rule, a summary of comments received from interested parties, names of those groups and associations who commented and whether they were for or against adoption of the rule, and the reasons why the Commission disagrees with some of the comments and proposals. The previous rule on agreements and settlements after final Commission orders or Appeals Panel decisions was adopted to prevent parties from entering into settlements which do not meet the statutory criteria for such settlements and to implement new legislation enacted in 1995 by the 74th Legislature. This amendment is adopted to implement amendments to the Texas Workers' Compensation Act ("Act") enacted in 1997 by the 75th legislature, including those that prevent the use of settlement agreements and judgments based on default or an agreement of the parties, to overturn Appeals Panel decisions or to seek reimbursement from the Subsequent Injury Fund. The legislation makes clear that the Act's requirements and prohibitions with regard to settlements also apply to court judgments. It also requires that the commission receive advance notice and an opportunity to intervene to explain to the court why the Commission believes a proposed judgment or settlement is not in compliance with the law. A settlement or judgment which is not in compliance with all provisions of the law, including the provisions regarding commission notice and opportunity to intervene, is void. Section 410.205 of the Act allows an insurance carrier to recover reimbursement from the Subsequent Injury Fund if a court of last resort finally modifies or reverses an Appeals Panel decision awarding benefits. Prior to the 1997 amendments, insurance carriers often appealed cases to court solely for the purpose of seeking reimbursement from the Subsequent Injury Fund. The parties would then settle the lawsuit or agree to a judgment or the carrier would obtain a default judgment. The 1997 legislation clarified the existing practice and statutory interpretation of the Commission that allowed reimbursement from the Subsequent Injury Fund only if a court held a trial on the merits that modified or reversed an Appeals Panel decision. This excluded reimbursement based on settlement agreements, default judgments, and agreed judgments. An additional problem was that judgments or settlements were often not in compliance with the law. The 1997 legislation and rule require that the Commission be given notice and an opportunity to advise the court if the Commission believes a proposed judgment or settlement is not in compliance with the law. The recent legislation (House Bill 3137, 75th Legislature, 1997), addressed the problems in part by amending the Texas Labor Code, sec.410.256 and adding sec.410.257 and sec.410.258 which set out the requirements for settlements reached after the issuance of an Appeals Panel decision (sec.410.256) and for judgments entered by courts on judicial review of an Appeals Panel decision. These statutory sections require notification of the Commission of proposed judgments and settlements and authorize the Commission to intervene in a proceeding after receipt of a proposed judgment or settlement (sec.410.258). The amendments to sec.147.11(a) require the party who filed for judicial review under Chapter 410, Subchapter F or G to file a proposed judgment or settlement with the General Counsel of the Commission by certified mail, return receipt requested not later than the 30th day before the date on which the court is scheduled to enter the judgment or approve the settlement. The previous rule placed the burden of filing on the insurance carrier and required the filing to be made at least 30 days prior to the earlier of the date the document is sent to the parties for signature or the date it is sent to a court for approval. The previous rule did not specify any specific manner of filing. The amendments to the rule regarding who has the burden of filing, the deadline for making the filing, and the required manner of filing are made to comply with the language of the Texas Labor Code, sec.410.258. The amendment to sec.147.11(a) also deletes references to the filing of agreements and refers instead only to settlements or judgments. This amendment is made to bring the rule into conformity with the language of the Texas Labor Code, sec.410.258, which uses the terms judgment and settlement. The amendment to sec.147.11(b) requires the insurance carrier or its representative to file with the General Counsel of the Commission a copy of a final judgment or settlement not later than the 10th day after a court approves the judgment or settlement. Most of this language was contained in subsection (a)(2) of the previous rule and was moved to a new subsection (b) for ease of understanding. As with subsection (a), the reference to agreements has been changed to a reference to a final judgment to bring the rule into conformity with the language of the Texas Labor Code, sec.410.258. Revised sec.147.11(c) makes clear that, for lawsuits filed on or after September 1, 1997, a judgment or settlement which is not filed with the Commission in compliance with sec.147.11 is void. This subsection is added to alert persons to the penalty provided by the Texas Labor Code, sec.410.258(f) for failing to comply with the notification requirements. Revised sec.147.11(d) provides an administrative violation for failure to comply with the rule. Most of this language was contained in subsection (b) of the previous rule and was moved to facilitate other amendments to the rule. As stated in subsection (d), a party who violates sec.147.11 may be subject to an administrative penalty of up to $1000 pursuant to the Texas Labor Code, sec.415.0035 or up to $10,000 pursuant to Texas Labor Code, sec.410.021 for repeated violations. One comment neither specifically supporting or opposing the proposed amendment, but requesting changes to sec.147.11, was received from the following: Texas Workers' Compensation Insurance Fund. Summaries of the comments and commission responses are as follows: COMMENT: Commenter stated that the effective date provision in subsection (c) seems inconsistent with the effective date of the amendments to the Texas Labor Code made by House Bill 3137. Commenter suggested that the proposed amendments to sec.147.11 should be effective only for disputes where the original dispute proceeding (BRC or CCH) was initiated on or after September 1, 1997. RESPONSE: The Commission disagrees with commenter's interpretation. The effective date provision in the legislative bill states that it is effective "September 1, 1997, and applies to a proceeding initiated on or after that date." (emphasis added) Use of the term "proceeding" throughout new sec.410.258 of the Labor Code clearly shows that the term refers to a judicial review proceeding. For example, new sec.410.258(a) of the Labor Code states that "The party who initiated a proceeding under this subchapter or Subchapter G must file any proposed judgment or settlement made by the parties to the proceeding, including a proposed default judgment,. . . before the date on which the court is scheduled to enter the judgment or approve the settlement." (emphasis added) The subchapters referred to are subchapters F and G, each of which is titled "Judicial Review. . ." New subsection (b) of sec.410.258 also states that "the commission may intervene in a proceeding under subsection (a). . .", (emphasis added). New subsection (c) allows the commission to intervene in the "proceeding". New subsection (e) states in part, "If the commission intervenes in the proceeding...(emphasis added). Therefore, a consistent and logical interpretation of the term proceeding, considering the statue as a whole, is to indicate a judicial proceeding. The term proceeding, throughout new sec.410.258 would not be logical if Commission dispute proceedings (BRC and CCH) were included. The amendment is adopted pursuant to the following statutes: the Texas Labor Code, sec.402.061, which authorizes the commission to adopt rules necessary to administer the Act; the Texas Labor Code, sec.408.005, which sets out requirements for settlements; the Texas Labor Code, sec.410.254, which establishes the commission's right to intervene in any judicial proceeding under Subtitle A, Title 5 of the Texas Labor Code; the Texas Labor Code, sec.410.256, as amended by House Bill 3137, 75th Legislature, 1997, which requires settlements to be in compliance with the provisions of the Texas Workers' Compensation Act, requires court approval of settlements after judicial review of an award is sought, and makes a settlement which does not comply with this section void; the Texas Labor Code, sec.410.257, as added by House Bill 3137, 75th Legislature, 1997, which requires court judgments to comply with the Texas Workers' Compensation Act and makes a judgment that does not comply with this section void; the Texas Labor Code, sec.410.258, as added by House Bill 3137, 75th Legislature, 1997, which requires proposed judgments and settlements be filed with the Commission and allows the Commission to intervene as a matter of right in a court proceeding and makes a settlement which does not comply with this section void; the Texas Labor Code, sec.415.0035, which provides additional violations by insurance carriers or health care providers and sets out penalties for violations; and the Texas Labor Code, sec.415.021, which provides for the assessment of administrative penalties. 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 November 12, 1997. TRD-9715175 Susan M. Cory General Counsel Texas Workers' Compensation Commission Effective date: December 2, 1997 Proposal publication date: September 26, 1997 For further information, please call: (512) 440-3972 CHAPTER 166.Accident Prevention Services 28 TAC sec.166.1 The Texas Workers' Compensation Commission (the commission) adopts an amendment to sec.166.1, concerning the definition of terms used in the accident prevention rules, without changes to the proposed text as published in the September 26, 1997, issue of the Texas Register (22 TexReg 9637). The amendment is adopted to change references to "manual premium" to reflect changes in premium rating methodology adopted by the Texas Department of Insurance (TDI). The term "manual premium" has been used in sec.166.1 to determine accident prevention service requirements. Manual premiums were derived using rates established by TDI and were believed to most nearly represent actual employee risk to injury or accident. As required by legislative changes, TDI has changed its premium rating methodology to a "file and use" system. TDI publishes "relativities" rates for each job classification. All insurance companies are required to file rates with TDI. Because rates are no longer standard or set by TDI, the term "manual premium" is obsolete. Insurance carriers now use the premium calculated on their filed rates as the trigger for providing required accident prevention services. Because of the discontinuation of TDI established rates (manual premiums), the premium derived from the filed rates best represents employee risk to injury or accident and therefore should be used to determine accident prevention service requirements. To accomplish this change in terminology the amendment to sec.166.1 deletes the words "manual" and "but before any adjustment or discounts are applied" in the definition of "Loss Ratio" and adds a definition of "Premium". No comments were received regarding adoption of the amendment. The amendment is adopted pursuant to the Texas Labor Code, sec.402.061, which authorizes the commission to adopt rules necessary to administer the Act; the Texas Labor Code, sec.401.011, which contains general definitions; the Texas Labor Code, sec.411.061, which requires an insurance company to provide accident prevention services; the Texas Labor Code, sec.411.062, which mandates the commission to establish qualifications for field safety representatives; and the Texas Labor Code, sec.sec.411.063 - 411.068, which require an insurance company to provide qualified accident prevention personnel and to provide notice of the accident prevention services, set certain specifications for the program, require an insurance company to annually submit information to the commission, require biennial inspections by the division, and provides for an administrative penalty for violation of the requirements. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 12, 1997. TRD-9715176 Susan M. Cory General Counsel Texas Workers' Compensation Commission Effective date: December 2, 1997 Proposal publication date: September 26, 1997 For further information, please call: (512) 440-3972 TITLE 34. PUBLIC FINANCE PART I. Comptroller of Public Accounts CHAPTER 7.Prepaid Higher Education Tuition Program The Comptroller of Public Accounts adopts amendments to sec.sec.7.2, 7.3, 7.11, 7.43, 7.51, 7.52, 7.61, 7.62, 7.63, 7.71, 7.81, and new sec.7.53, 7.54, and 7.72 concerning the administration of the Prepaid Higher Education Tuition Program, without changes to the proposed text as published in the September 19, 1997, issue of the Texas Register (22 TexReg 9440). These changes are adopted to conform program rules to changes in the program's enabling statute (Education Code, Chapter 54) made by House Bill 9, 75th Legislature, 1997. These changes are also necessary to make the rules conform to recent changes in federal law and to clarify the meaning of certain provisions. No comments were received regarding adoption of the amendments and new sections. SUBCHAPTER A.General Rules 34 TAC sec.7.2, sec.7.3 The amendments are adopted under the Education Code, Chapter 54, Subchapter F, sec.54.618 which authorizes the board to adopt rules necessary for the implementation of the Prepaid Higher Education Tuition Program. No other code, article, or statute is affected by these amendments. The amended and new rules implement the Education Code, Chapter 54, Subchapter F. 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 November 13, 1997. TRD-9715273 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: December 3, 1997 Proposal publication date: September 19, 1997 For further information, please call: (512) 463-4062 SUBCHAPTER B.Board Meeting Guidelines and Requirements 34 TAC sec.7.11 The amendment is adopted under the Education Code, Chapter 54, Subchapter F, sec.54.618 which authorizes the board to adopt rules necessary for the implementation of the Prepaid Higher Education Tuition Program. No other code, article, or statute is affected by this amendment. 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 November 13, 1997. TRD-9715272 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: December 3, 1997 Proposal publication date: September 19, 1997 For further information, please call: (512) 463-4062 SUBCHAPTER E.Application, Enrollment, Payment, and Fees 34 TAC sec.7.43 The amendment is adopted under the Education Code, Chapter 54, Subchapter F, sec.54.618 which authorizes the board to adopt rules necessary for the implementation of the Prepaid Higher Education Tuition Program. No other code, article, or statute is affected by this amendment. 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 November 13, 1997. TRD-9715275 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: December 3, 1997 Proposal publication date: September 19, 1997 For further information, please call: (512) 463-4062 SUBCHAPTER F.Tuition 34 TAC sec.sec.7.51-7.54 The amended and new rules are adopted under the Education Code, Chapter 54, Subchapter F, sec.54.618 which authorizes the board to adopt rules necessary for the implementation of the Prepaid Higher Education Tuition Program. No other code, article, or statute is affected by these sections. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 13, 1997. TRD-9715274 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: December 3, 1997 Proposal publication date: September 19, 1997 For further information, please call: (512) 463-4062 SUBCHAPTER G.Beneficiaries 34 TAC sec.sec.7.61-7.63 The amendments are adopted under the Education Code, Chapter 54, Subchapter F, sec.54.618 which authorizes the board to adopt rules necessary for the implementation of the Prepaid Higher Education Tuition Program. No other code, article, or statute is affected by these amendments. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 13, 1997. TRD-9715279 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: December 3, 1997 Proposal publication date: September 19, 1997 For further information, please call: (512) 463-4062 SUBCHAPTER H.Conversion 34 TAC sec.7.71, sec.7.72 The amended and new rules are adopted under the Education Code, Chapter 54, Subchapter F, sec.54.618 which authorizes the board to adopt rules necessary for the implementation of the Prepaid Higher Education Tuition Program. No other code, article, or statute is affected by these sections. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 13, 1997. TRD-9715278 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: December 3, 1997 Proposal publication date: September 19, 1997 For further information, please call: (512) 463-4062 SUBCHAPTER I.Refunds, Termination 34 TAC sec.7.81 The amendment is adopted under the Education Code, Chapter 54, Subchapter F, sec.54.618 which authorizes the board to adopt rules necessary for the implementation of the Prepaid Higher Education Tuition Program. No other code, article, or statute is affected by this amendment. 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 November 13, 1997. TRD-9715277 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: December 3, 1997 Proposal publication date: September 19, 1997 For further information, please call: (512) 463-4062 PART IV. Employees Retirement System CHAPTER 87.Deferred Compensation 34 TAC sec.87.17, sec.87.19 The Employees Retirement System of Texas (ERS) adopts amendments to sec.87.17 and sec.87.19, concerning deferred compensation, with minor administrative changes made by Texas Register editors to the proposed text as published in the August 29, 1997 issue of the Texas Register (22 TexReg 8604). These amendments concern reporting and recordkeeping requirements. The amendment to sec.87.17 revises the name of the Internal Revenue Form to be used for certain reporting requirements. The amendments to sec.87.19 allows vendors to file quarterly reports via electronic file transfer. No comments were received regarding adoption of these amendments. The amendments are adopted under Government Code sec.609.508, which provides the board of trustees the authority to adopt any rules necessary to administer the deferred compensation plan. sec.87.17.Distributions. (a)-(t) (No change) (u) Federal withholding and reporting requirements. (1) A qualified vendor shall file all reports required by the Internal Revenue Service (IRS) when any deferrals and investment income are distributed or otherwise made available to a participant or beneficiary. Payments made to a participant during the participant's life must be reported as taxable wages on an IRS Form W-2, or another appropriate form which may be hereafter promulgated by the IRS. Pursuant to the provisions of Internal Revenue Service Revenue Ruling 86-109 (1986-2 CB 196), payments to the beneficiary of a deceased participant must be reported on IRS Form 1099-R (or another appropriate form which may be hereafter promulgated by the IRS) as taxable income of the beneficiary. (2)-(4) (No change) (5) Total death benefits, including life insurance proceeds, are taxable as ordinary income to the beneficiary and must be reported on a Form 1099-R in accordance with paragraph (m) of this subsection. (6) (No change) sec.87.19.Reporting and Recordkeeping by Qualified Vendors. (a)-(c) (No change) (d) Quarterly reports to the plan administrator. (1)-(2) (No change) (3) Format of quarterly reports. (A) All quarterly reports must be in the format prescribed by the plan administrator and follow the DCP quarterly reporting specifications on a: (i) 10 1/2 inch magnetic tape; (ii) (No change) (iii) 5 1/4 or 3 1/2 inch high quality PC diskette; (iv) manual form; or (v) electronic file transfer - use of file transfer protocol (FTP), via the Internet or as an attachment to an electronic mail (E-mail). (B) (No changes) (C) Before a qualified vendor may use a medium other than a manual form to file a quarterly report with the plan administrator, the vendor must submit a written request along with a test tape, cartridge, electronic transfer, or diskette to the plan administrator. The ERS must approve and make arrangements with the qualified vendor prior to testing the electronic file transfer described in subparagraph (A)(v) of this paragraph. The test tape, cartridge, electronic transfer, or diskette must be in the format and contain the information prescribed by the DCP reporting specifications and contain the information that the plan administrator requires including the items listed in paragraph (2)(A)- (J) of this subsection. Failure to submit data in the specified format will result in the return of the media without processing. If the plan administrator determines that the test tape, cartridge, electronic transfer, or diskette is inadequate, the plan administrator shall ensure that the number of participants whose deferrals and investment income are invested at any given time in the vendor's qualified investment products does not exceed 49. (D)-(F) (No change) (4) (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 November 17, 1997. TRD-9715447 Sheila W. Beckett Executive Director Employees Retirement System Effective date: December 8, 1997 Proposal publication date: August 29, 1997 For further information, please call: (512) 867-3336 PART XI. Fire Fighter's Pension Commission CHAPTER 301. Rules of the Texas Statewide Emergency Services Retirement Fund 34 TAC sec.301.3 The Fire Fighter's Pension Commission adopts an amendment to sec.301.3, concerning determination of costs, without changes to the proposed text as published in the October 17, 1997, issue of the Texas Register (22 TexReg 10251) and will not be republished. The section is amended to include other emergency services personnel in addition to the volunteer fire fighters. Throughout the section the words "fire fighter" were deleted and the word "member" was added to include other volunteer personnel in the retirement fund. The section also contains new language regarding vesting. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243e3, (Senate Bill 411) 65th Legislature (1977), revised in the 72nd Legislature (1991), and revised in the 75th legislature (1997), which provide the Fire Fighters' Pension Commission with the authority to promulgate rules necessary for the administration of the pension fund. No other statutes, articles, or codes are affected by the proposed rule. 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 November 17, 1997. TRD-9715435 Elaine Rummel Program Administrator Fire Fighter's Pension Commission Effective date: December 8, 1997 Proposal publication date: October 17, 1997 For further information, please call: (512) 936-3476 TITLE 37. PUBLIC SAFETY AND CORRECTIONS PART I. Texas Department of Public Safety CHAPTER 6.License to Carry Concealed Handgun SUBCHAPTER B.Eligibility and Application Procedures 37 TAC sec.6.21 The Texas Department of Public Safety adopts an amendment to sec.6.21, concerning Renewal of License, without changes to the proposed text as published in the October 3, 1997, issue of the Texas Register (22 TexReg 9862). The justification for this section will be to inform the public that the nonrefundable fee for renewing a concealed handgun license is $70.00. Amendment to (e)(3)(C) sets the nonrefundable renewal fee for a concealed handgun license at $70.00. No comments were received regarding adoption of the amendment. The amendment is adopted pursuant to Texas Government Code, sec.411.197 which states the director shall adopt rules to administer this subsection and sec.411.185 which requires payment of a nonrefundable fee as set by the department. 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 November 10, 1997. TRD-9715327 Dudley M. Thomas Director Texas Department of Public Safety Effective date: December 3, 1997 Proposal publication date: October 3, 1997 For further information, please call: (512) 424-2890 TITLE 40. SOCIAL SERVICES AND ASSISTANCE PART VI. Texas Commission for the Deaf and Hard of Hearing CHAPTER 183.Board for Evaluation of Interpreters and Interpreter Certification SUBCHAPTER B.Certification Procedures 40 TAC sec.183.157 The Texas Commission for the Deaf and Hard of Hearing adoptssec.183.157, concerning Certification Procedures with changes to the text as published in the June 3, 1997, issue of the Texas Register (22 TexReg 4873). This amendment updates current recertification procedures to require continuing education units for certification maintenance of interpreters licensed by the Commission and to promote increased levels of skill. Two comments were received regarding the exclusion of workshop presentations as a means of earning continuing education units for recertification. The elimination of earning continuing education units for workshop presentations was not intended, and has been clarified in the amendment. The amendment is adopted under the Human Resources Code, sec.81.006(b) (3), which provides the Texas Commission for the Deaf and Hard of Hearing with the authority to adopt rules for administration and programs. The adopted amendment affects Texas Administrative Code, Title 40, Chapter 183, Subchapter B, sec.183.157. sec.183.157. Recertification Process. The commission has established the following requirements for recertification. Either direct evaluation of interpreting skills or verification of training attendance can be used for recertification. (1) Evaluation of interpreting/transliterating skills. A certificate holder can apply for recertification by taking the same level evaluation or the next level of evaluation. (2) Verification of training attended or given. In lieu of evaluation, a certificate holder shall submit documentation of training attendance or presentations given within the last certification period to indicate the following: (A) Completion of 5.0 CEU's or equivalent in any professional training related to professional ethics, the field of interpreting, standards of interpreting practice or other pre-approved topics. (B) Completion of 7.5 CEU's or equivalent in any professional training related to professional ethics, the field of interpreting, standards of interpreting practice, or other pre-approved topics beginning in 2001. (C) Completion of 10.0 CEU's or equivalent in any professional training related to professional ethics, the field of interpreting, standards of interpreting practice, or other pre-approved topics beginning in 2003. 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 November 13, 1997. TRD-9715323 David W. Myers Executive Director Texas Commission for the Deaf and Hard of Hearing Effective date: December 3, 1997 Proposal publication date: June 3, 1997 For further information, please call: (512) 451-8494