ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 4. AGRICULTURE PART II. Texas Animal Health Commission CHAPTER 35.Brucellosis SUBCHAPTER A.Eradication of Brucellosis in Cattle 4 TAC sec.35.1 The Texas Animal Health Commission adopts an amendment to sec.35.1, concerning definitions relating to eradication of brucellosis in cattle without changes to the proposed text as published in the November 21, 1997, issue of the Texas Register (22 TexReg 11193). The amendment changes the definitions of exempt cattle and test-eligible cattle in other than priority herds in order to standardize vaccination ages of cattle. The amendment also adds a definition of hold order to distinguish that form of restriction from a quarantine. The amendment also eliminates the definition of test-eligible cattle; that definition was included as a typographical error. No comments were received regarding the adoption of the amendment. The amendment is adopted under the Texas Agriculture Code, Chapter 161, Subchapter C, sec.161.041 and sec.161.046 which authorize the Commission to enact rules to eradicate communicable disease, and Chapter 163, Subchapter D, sec.161.061 and sec.163.064 which authorize the Commission to adopt rules relating to vaccination of cattle. 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. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800804 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: February 5, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 719-0714 CHAPTER 43.Tuberculosis SUBCHAPTER A.Eradication of Tuberculosis in Cattle 4 TAC sec.43.1 The Texas Animal Health Commission adopts an amendment to sec.43.1, concerning requirements relating to eradication of tuberculosis in cattle without changes to the proposed text as published in the November 21, 1997, issue of the Texas Register (22 TexReg 11194). The amendment enhances the payment of indemnity for tuberculosis reactor cattle. This action can be taken as a result of legislative action effective September 1, 1997. Under the amendment, TAHC will pay up to $250.00 for each animal classified as a suspect or reactor and $100.00 for each exposed animal slaughtered as a result of herd depopulation. No comments were received regarding the adoption of the amendment. The amendment is adopted under the Texas Agriculture Code, Chapter 161, Subchapter C, sec.161.041 and sec.161.046 which authorize the Commission to enact rules to eradicate tuberculosis, and Chapter 162, sec.162.008 which authorizes the Commission to adopt rules relating to tuberculosis indemnity. 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. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800808 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: February 5, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 719-0714 CHAPTER 49.Equine 4 TAC sec.49.2 The Texas Animal Health Commission adopts an amendment to sec.49.2, concerning equine, interstate movement requirements without changes to the proposed text as published in the November 21, 1997, issue of the Texas Register (22 TexReg 11195). The amendment authorizes equine to enter the state with a completed VS Form 10- 11 (Equine Infectious Anemia Laboratory Test) attached to the Certificate of Veterinary Inspection instead of transposing the information from the VS Form 10-11 onto the Certificate of Veterinary Inspection. No comments were received regarding the adoption of the amendment. The amendment is adopted under the Texas Agriculture Code, Chapter 161, Subchapter C, sec.161.041 and sec.161.046 which authorize the Commission to enact rules to control equine infectious anemia, and Subchapter E, sec.161.081 which authorizes the Commission to regulate the movement of animals into 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. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800810 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: February 5, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 719-0714 CHAPTER 51.Interstate Shows and Fairs 4 TAC sec.51.1 The Texas Animal Health Commission adopts an amendment to sec.51.1, concerning definitions, interstate shows and fairs without changes to the proposed text as published in the November 28, 1997, issue of the Texas Register, (22 TexReg 11618). The amendment adds a definition of an assembly. No comments were received regarding the adoption of the amendment. The amendment is adopted under the Texas Agriculture Code, Chapter 161, Subchapter C, sec.161.041 and sec.161.046 which authorize the Commission to enact rules to eradicate communicable diseases, and Subchapter C, sec.161.054 which authorizes the Commission to regulate the movement of animals. 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. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800811 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: February 5, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 719-0714 4 TAC sec.51.2 The Texas Animal Health Commission proposed an amendment to sec.51.2, concerning general requirements, interstate shows and fairs without changes to the proposed text as published in the November 28, 1997, issue of the Texas Register, (22 TexReg 11618). The amendment requires all equine gathered in assemblies to have proof of a negative EIA test, and details an exemption for nursing foals. The amendment also changes the address of the TAHC. Five comments were received in favor of the adoption of the amendment. The amendment is adopted under the Texas Agriculture Code, Chapter 161, Subchapter C, sec.161.041 and sec.161.046 which authorize the Commission to enact rules to eradicate communicable diseases and Subchapter C, sec.161.043 which authorizes the Commission to regulate the movement of animals into exhibitions, shows and fairs. 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. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800812 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: February 5, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 719-0714 4 TAC sec.51.4 The Texas Animal Health Commission adopts an amendment to sec.51.4, concerning interstate shows and fairs, special requirements from areas with vesicular stomatitis without changes to the proposed text as published in the November 21, 1997, issue of the Texas Register (22 TexReg 11196). The amendment prohibits the entry of animals from any premise or area under quarantine for vesicular stomatitis and requires the veterinarian completing the Certificate of Veterinary Inspection to verify that the animals have not originated from such a premise or area. No comments were received regarding the adoption of the amendments. The amendment is adopted under the Texas Agriculture Code, Chapter 161, Subchapter C, sec.161.041 and sec.161.046 which authorize the Commission to enact rules to eradicate communicable diseases, and Subchapter D, sec.161.061 which requires the Commission to establish a quarantine against any area where a communicable disease exists. 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. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800813 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: February 5, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 719-0714 4 TAC sec.51.6 The Texas Animal Health Commission adopts a new rule sec.51.6, concerning interstate movement of sheep not known to be infected or exposed to scrapie, interstate shows and fairs with changes to the proposed text as published in the November 21, 1997, issue of the Texas Register, (22 TexReg 11196). The amendment establishes entry requirements for sheep from other states. It requires sheep from states with an active scrapie control and surveillance program to first be accompanied by a health certificate stating that an examination of the herd or premise of origin shows no evidence of exposure to scrapie, or secondly be accompanied by a health certificate stating that an examination of the herd or premise of origin shows no evidence of exposure to scrapie and lists permanent identification numbers. The amendment also provides that sheep be consigned directly to auction markets provided that it is an approved slaughter market. The amendment also requires sheep from states that do not have an active scrapie control and surveillance program to fist enter with a health certificate and permit into a scrapie control program herd; or secondly, be accompanied by a health certificate stating that an examination of the herd or premise of origin shows no evidence of exposure to scrapie. Comments were received regarding the amendment to add the provision that sheep may be consigned directly to a state approved slaughter market, and to include the genre Columbia into the requirements, which was previously overlooked. The new section is adopted under the Texas Agriculture Code, Chapter 161, Subchapter C, sec.161.041 and sec.161.046 which authorize the Commission to enact rules to control communicable diseases, and Subchapter E, sec.161.081 which authorizes the Commission to regulate the movement of animals into Texas. sec.51.6.Interstate Movement of Sheep Not Known to be Infected or Exposed to Scrapie. (a) Requirements for entry of sheep from states with an active scrapie control and surveillance program (state of origin requires that the state animal health official of that state be immediately notified of any suspected or confirmed case of scrapie in that state and requires that sheep and/or goats from infected or source flocks be quarantined). (1) Breeding sheep (A) Finewool sheep (Rambouillet, Columbia, Debroulliet, Merino, and Targhee). Sheep must be accompanied by a health certificate stating that an examination of the herd and/or premise of origin shows no evidence of exposure to scrapie. (B) Mediumwool breeds and crossbreeds. Sheep must be accompanied by a health certificate listing permanent identification numbers and stating that examination of the herd and/or premise of origin shows no evidence of exposure to scrapie. (2) Sheep entering for grazing or to slaughter or feedlot. Sheep must be accompanied by a health certificate stating an examination of premise and/or herd of origin shows no evidence of exposure to scrapie. Provided, sheep consigned directly to Federal inspected slaughter facilities, state approved slaughter markets, and wether lambs have no entry requirements. (A) TAHC state approved slaughter market is one which: (i) maintains records of origin of sheep and disposition of sheep to slaughter; (ii) maintains out of state slaughter sheep separate and apart from other classes of sheep; (iii) assures that out of state slaughter sheep are released from the market consigned only for export or to slaughter facilities with local/state, or federal inspection. (b) Movement of sheep from states with no active scrapie control and surveillance program. (1) Breeding sheep. (A) Sheep may enter Texas on a health certificate and permit only into a scrapie control program herd; and the (B) Texas herd must continue in the program for five years after entry of the sheep. (2) Sheep entering Texas for grazing, slaughter or feedlots. (A) Sheep must be accompanied by a health certificate and entry permit stating that examination of premise and/or herd of origin shows no evidence of exposure to scrapie, provided sheep consigned directly to federal inspected slaughter facilities have no entry requirements, and (B) Wether lambs have no entry 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. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800814 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: February 5, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 719-0714 TITLE 10. COMMUNITY DEVELOPMENT PART I. Texas Department of Housing and Community Affairs CHAPTER 9.Texas Community Development Program SUBCHAPTER A.Allocation of Program Funds 10 TAC sec.9.1, sec.9.7 The Texas Department of Housing and Community Affairs (TDHCA) adopts amendments to sec.9.1 and sec.9.7, concerning the allocation of Community Development Block Grant (CDBG) non-entitlement area funds under the Texas Community Development Program (TCDP) without changes to the proposed text as published in the December 12, 1997, issue of the Texas Register (22 TexReg 12197). The amendments establish a date of abolishment for the State Community Development Review Committee; change the name of the Texas Department of Commerce to the Texas Department of Economic Development; and establish standards and procedures for the allocation of fiscal year 1997 economic development funds. The amendments make changes to the application and selection criteria for the Texas Capital Fund. No comments were received regarding the adoption of the amendments. The amendments are adopted under Texas Government Code, Chapter 2306, sec.2306.098, which provides TDHCA with the authority to allocate Community Development Block Grant non-entitlement area funds to eligible counties and municipalities according to department rules. 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. Filed with the Office of the Secretary of State on January 14, 1998. TRD-9800549 Larry Paul Manley Executive Director Texas Department of Housing and Community Affairs Effective date: February 3, 1998 Proposal publication date: December 12, 1997 For further information, please call: (512) 475-3726 CHAPTER 51.Housing Trust Fund Rules 10 TAC sec.sec.51.1-51.18 The Texas Department of Housing and Community Affairs (the Department) is adopting, with changes, sec.sec.51.1-51.14 and new sec.sec.51.16-51.18, as published in the Texas Register, (22 TexReg 10484), on October 24, 1997, concerning the Housing Trust Fund Rules. The sections are being adopted in final form to provide procedures for the allocation by the Department of certain funds available under state laws to qualified public entities, nonprofit organizations, for profit entities, and persons and families, to provide safe, decent, and sanitary housing for low, very low, and extremely low income families and individuals and persons with special needs. On October 24, 1997, the proposed new and amended rules were published in the Texas Register, (22 TexReg 10484), thereby commencing the required 30 day public comment period. Said public comment period ended on November 24, 1997. The Department sent out 354 notices of the proposed rule changes. Staff received approximately 25 requests for copies of the proposed rules from the public. The Department sent out approximately 1,500 notices of public hearings to be held regarding the proposed rule changes. Copies of the proposed rules and notices of the public hearings were also sent to all members of the State Legislature. During the public comment period, and at the public hearings, the Department received both oral and written comments from the public. The scope of public comments concerning the rules pertain to the following issues: Proposed Income Targeting (sec.51.5(f))- The proposed amendment would have the Housing Trust Fund apply at least 15% of funds to individuals and families earning less than 30% of median family income, and a minimum of 20% of funds to individuals and families earning between 31 and 60% of median family income. A comment was made that this will cut the support targeted to lower income families in half. Department's Response - The Housing Trust Fund has made this change in an effort to comply with Rider 3 of the Department's appropriation, General Appropriations Act of the 1998-1999 biennium. The Rider states: "The housing finance division shall adopt a goal to apply a minimum of 15% of the division's total housing funds toward housing assistance for individuals and families earning less than 30% of median family income. No less than 20% of the division's total housing funds shall be spent for individuals and families earning between 31% and 60% of median family income." It is not the intent of the Program to produce fewer very low income and/or extremely low income housing units as a result of this change. The Housing Trust Fund is committed to serving these income groups to the greatest extent possible. These percentages are "minimums" and should not be interpreted as a change in program policy. The Housing Trust Fund provides scoring incentives to applicants that assist these income groups. Board Recommendation - The Department's response is accepted. CHDO Set-aside (sec.51.5 (d) original)- The proposed amendment would eliminate the 35% CHDO set-aside. It is argued that this will disadvantage community-based nonprofit organizations. Department's Response - The CHDO set aside has had very little participation in past funding cycles. Additionally, non-profit organizations are eligible to compete for all Housing Trust Fund project funds. The Housing Trust Fund awards points to those applicants who are able to demonstrate a high level of community involvement both in the development of the proposed project, as well as in their historical commitment to the community. Board Recommendation - The CHDO set-aside will remain intact. It will be calculated as part of the $2.6 million available to nonprofit organizations, units of local government, public housing authorities and community housing development organizations. In the event that there is an insufficient number of qualifying applicants for this allocation, any remaining funds will then be made available to other qualifying applicants. Non-metropolitan Area Targeting (sec.51.5 (d)) - The proposed amendment reduces non-metropolitan targeting from 70% of funds to 50% of funds. A comment was made that a high percentage of HTF funds should remain targeted to non-metropolitan areas of the state, because metropolitan areas have other funding sources available. Department's Response - Because of the limited amount of funding available to the Housing Trust Fund and a low level of participation by organizations proposing non-metropolitan projects, the Program has generally seen only 40-50% of project funds go to non-metropolitan areas. The Program hopes to see more non-metropolitan applications and will provide scoring incentives in order to encourage greater participation. Board Recommendation - The Department's response is accepted. Housing Development and Pre-development costs (sec.51.3) - The proposed amendments eliminate certain pre-development costs as eligible activities for HTF funds. A comment was made that the elimination of these costs will disadvantage organizations which do not have financial reserves, or other means of covering these costs. Department's Response - It is the Program's opinion that it should be more selective in paying for pre-development and/or development costs. The costs in question are incurred at the developmental stage of the project when there is less assurance that the project will go forward. One of the objectives of the Department is to be paid back for the public funds that are invested into a project. This provides for the recycling of funds into future Housing Trust Fund projects. As a repayable source of gap financing, the Program would like to see funding of hard costs associated with actual housing production. Board Recommendation - Predevelopment costs will remain intact, as reimbursable expenses. In addition, up to 10% of any biennium allocation of Housing Trust Fund program funds may be set aside to create a pre-development loan fund to be used for matching funds with outside funds. Extremely Low Income Category - The proposed amendments define "extremely low income" as families and persons earning less than 30% of area median family income. Several groups expressed concern regarding the difficulty of addressing the housing needs of the extremely low income. Department's Response - The extremely low income category was defined by the Legislature in the 1997 amendments to Section 2306 (House Bill 2577), as a targeted income group. The Department is charged with addressing the needs of these individuals and families. Board Recommendation - The Department's response is accepted. The Department has made corrections. The amended and new sections are proposed for final adoption pursuant to the Texas Government Code, Chapter 2306, which provides the Texas Department of Housing and Community Affairs with the authority to adopt rules governing the administration of the department and its programs. sec.51.1.Purpose. This part describes policies and procedures applicable to the Housing Trust Fund authorized under Texas Government Code, Chapter 2306, Subchapter I. sec.51.2. Program Goals and Objectives. (a) The Housing Trust Fund shall be used by the Department to provide loans, grants, or other comparable forms of assistance to local units of government, the Department, public housing authorities, community housing development organizations, nonprofit organizations, for profit entities, and income-eligible persons, families, and households to finance, acquire, rehabilitate, and develop affordable, decent, safe, and sanitary housing. (b) The Housing Trust Fund shall be used by the Department to provide assistance for persons and families of low, very low, and extremely low income in financing, acquiring, rehabilitating, and developing affordable, decent, safe, and sanitary housing. (c) The Housing Trust Fund shall be used by the Department to provide technical assistance and capacity building to nonprofit organizations, and community housing development organizations engaged in developing affordable housing for persons and families of low, very low, and extremely low income. sec.51.3. Definitions. The following words and terms, when used in this part, shall have the following meaning, unless the context clearly indicates otherwise. Act - Texas Government Code, Chapter 2306, Subchapter I. Affordable Housing - Housing for which low, very low, and extremely low income families are not required to pay more than 30% of monthly adjusted income for the mortgage payment and utilities, or rent and utilities, computed in accordance with the federal regulations for the Section 8 Existing Housing Program set forth in the Code of Federal Regulations, Title 24, Part 5, Subpart F. Board - The governing board of the Department. Capacity Building - Educational and organizational support assistance to promote the ability of community housing development organizations and nonprofit organizations to maintain, rehabilitate and construct housing for low, very low, and extremely low income persons and families. This activity may include but is not limited to: (A) organizational support to cover expenses for training, technical and other assistance to the board of directors, staff, and members of the nonprofit organizations or community housing development organization; (B) program support including technical assistance and training related to housing development, housing management, or other subjects related to the provision of housing or housing services; or (C) studies and analyses of housing needs. Community Housing Development Organizations - A nonprofit organization that satisfies the requirements of 24 CFR92.2, as amended, as certified by a HOME Program. Department - The Texas Department of Housing and Community Affairs. Eligible Applicants - Local units of government, public housing authorities, community housing development organizations, nonprofit organizations, for profit entities, persons and families of low, very low, and extremely low income, and persons with special needs. Extremely Low Income Persons and Families - Persons and families earning not more than 30% of the area median income as determined by the United States Department of Housing and Urban Development, with allowances for family size. Federal Government - The United States of America or any department, division, agency or instrumentality, corporate or otherwise, of the United States of America. Housing Development Costs - The total of all costs incurred in financing, creating, or purchasing any housing development, including, but not limited to, a single-family dwelling, which are approved by the Department as reasonable and necessary. The costs may include, but are not limited to: (A) the value of land and any buildings on the land owned by the sponsor, or the cost of land acquisition and any buildings on the land, including payments for options, deposits, or contracts to purchase properties on the proposed housing sites; (B) cost of site preparation, demolition, and development; (C) fees paid or payable in connection with the planning, execution, and financing of the housing development, such as those to the architects, engineers, attorneys, accountants; (D) cost of necessary studies, surveys, plans, permits, insurance, interest, financing, tax and assessment costs, and other operating and carrying costs during construction; (E) cost of construction, rehabilitation, reconstruction, fixtures, furnishings, equipment, machinery, and apparatus related to the real property; (F) cost of land improvements, including without limitation, landscaping and off-site improvements, whether or not the costs have been paid in cash or in a form other than cash; (G) necessary expenses in connection with initial occupancy of the housing development; (H) an allowance established by the Department for contingency reserves and reserves for any anticipated operating deficits during the first two years of occupancy; and (I) the cost of the other items, including tenant relocation, if tenant relocation costs are not otherwise being provided for, as the Department shall determine to be reasonable and necessary for the development of the housing development, less any and all net rents and other net revenues received from the operation of the real and personal property on the development site during construction. Housing Development or Housing Project - Any real or personal property, project, building, structure, facilities, work, or undertaking, whether existing, new construction, remodeling, improvement, or rehabilitation, which meets or is designed to meet minimum property standards consistent with those prescribed in the Housing Trust Fund Property Standards, found in the Program Guidelines, for the primary purpose of providing sanitary, decent, and safe dwelling accommodations for rent, lease, use, or purchase by persons and families of low, very low, and extremely low income, and persons with special needs. The term may include buildings, structures, land, equipment, facilities, or other real or personal properties which are necessary, convenient, or desirable appurtenances, such as but not limited to streets, water, sewers, utilities, parks, site preparation, landscaping, stores, offices, and other non-housing facilities, such as administrative, community and recreational facilities the Department determines to be necessary, convenient, or desirable appurtenances. Housing Finance Division - The division or divisions of the Department responsible for the administration of the Housing Trust Fund. Joint Venture - An agreement between a lead applicant and a cooperating entity formed to administer or implement a Housing Trust Fund project. Lead Applicant - An Eligible Applicant designated in a Housing Trust Fund application to assume contractual liability and legal responsibility as the Recipient executing the written agreement with the State. Local Government - A county; an incorporated municipality; a special district; any other legally constituted political subdivision of the state; a public, nonprofit housing finance corporation created under the Local Government Code, Chapter 394; or a combination of any of the entities described here. Low Income Persons and Families - Persons and families earning not more than 80% of the area median income as determined by the United States Department of Housing and Urban Development, with allowances for family size. Metropolitan and Metro - Areas designated by the Bureau of the Census as metropolitan statistical areas (MSA) in the most recent decennial census. Non-metropolitan and Non-Metro - Refers to all areas outside those areas designated as MSAs by the Bureau of the Census in the most recent decennial census. Nonprofit Organization - Any public or private, nonprofit organization that: (A) is organized under state or local laws; (B) has no part of its net earnings inuring to the benefit of any member, founder, contributor, or individual; (C) is neither controlled by, nor under the direction of, individuals or entities seeking to derive profit or gain from the organization. A nonprofit organization may be sponsored in part by a for-profit entity, but: (i) the for-profit entity may not be an entity whose primary purpose is the development or management of housing, such as a builder, developer, or real estate management firm; (ii) the for-profit entity may not have the right to appoint more than one-third of the membership of the organization's governing body. Board members appointed by the for-profit entity may not appoint the remaining two thirds of the board members; and (iii) the organization must be free to contract for goods and services from vendors of its own choosing; (D) has a tax exemption ruling from the Internal Revenue Service under the Internal Revenue code of 1986, sec.501(c), as amended; (E) does not include a public body (including the participation jurisdiction) or an instrumentality of a public body. An organization that is state or locally chartered may qualify as a nonprofit organization; however, the state or local government may not have the right to appoint more than one-third of the membership of the organization's governing body and no more than one-third of the Board members can be public officials; (F) has standards of financial accountability that conform to Attachment F of the Office of Management and Budget, Circular Number A-100 (revised) "Standards for Financial Management Systems"; and (G) has among its purposes, the provision of decent housing that is affordable to low, very low, and extremely low income persons, as evidenced by its charter, articles of incorporation, resolutions or by-laws. Person with Special Needs - A person or family of low, very low, or extremely low income who: (A) is considered disabled under a state or federal law; (B) is elderly (age 60+); (C) is designated by the Board as experiencing a unique need for affordable, decent, safe housing that is not being met adequately by private enterprise. Predevelopment Costs - Reimbursable costs related to a specific eligible housing project including: (A) Predevelopment housing project costs that the Department determines to be customary and reasonable, including but not limited to consulting fees, costs of preliminary financial applications, legal fees, architectural fees, engineering fees, engagement of a development team, site control, and title clearance; (B) Preconstruction housing project costs that the Department determines to be customary and reasonable, including but not limited to, the costs of obtaining firm construction loan commitments architectural plans and specifications, zoning approvals, engineering studies and legal fees. (C) Predevelopment costs do not include general operational or administrative cost. Public Housing Authority - A housing authority established under the Texas Local Government Code, Chapter 392. Real Property - All land, including improvements and fixtures and property of any nature appurtenant, or used in connection therewith, and every estate, interest, and right, legal or equitable therein, including leasehold interests, terms for years, and liens by way of judgment, mortgage or otherwise. Recipient - Community housing development organization, nonprofit organization, for profit entity, local unit of government, or public housing authority that is approved by the Department to receive and administer housing trust funds in accordance with these rules. Rural Project - A project located within an area which: (A) is situated outside the boundaries of a PMSA or MSA; or (B) is situated within the boundaries of a PMSA or MSA if it has a population of not more than 20,000, and does not share boundaries with an urbanized area; or (C) has received financing or has received a commitment for financing from Texas Rural Development. State - The State of Texas. Total Bond Indebtedness- All single-family mortgage revenue bonds (including collateralized mortgage obligations), multifamily mortgage revenue bonds and other debt obligations issued or assumed by the Department and outstanding as of August 31 of the year of calculation, excluding: (A) all such bonds rated Aaa by Moody's Investors Service or AAA by Standard & Poor's Corporation for which the Department has no direct or indirect financial liability from the Department's unencumbered fund balances; and (B) all other such bonds, whether rated or unrated, for which the Department has no direct or indirect financial liability from the Department's unencumbered fund balances, unless Moody's or Standard & Poor's has advised the Department in writing that all or a portion of the bonds excluded by this clause should be included in a determination of total bond indebtedness. Unencumbered Fund Balances - (A) the sum of the balances resulting at the end of each Department fiscal year from deducting the sum of bond indenture and credit rating restrictions and liabilities from the sum of amounts on deposit in indenture funds and other tangible and intangible assets of each Department housing bond program; and (B) uncommitted amounts on deposit in each independent or separate unrestricted fund established by the housing finance division or its administrative component units. Very low Income Persons and Families - Persons and families earning not more than 60% of the area median income as determined by the United States Department of Housing and Urban Development, with allowances for family size. sec.51.4. Availability of Funds and Schedule. (a) The Housing Trust Fund consists of appropriations or transfers made to the fund, unencumbered fund balances, and public or private gifts or grants. Assets in the fund may be used only to carry out the purposes of this rule. (b) An independent auditor shall annually conduct an audit to determine the amount of unencumbered fund balances of all housing finance division funds. The independent auditor shall submit the audit report to the Board before January 1 of each year. After the report has been received by the Board, copies of the auditor's determination of unencumbered fund balances shall be made available to the public at the Department's offices, without cost to the public. (c) Staff of the Department's housing finance division shall, on or before January 1 of each year, compute the total bond indebtedness of the Department and shall prepare worksheets explaining the calculation of 2.0% of total bond indebtedness. Copies of these worksheets shall be made available to the public at the Department's offices, without cost to the public. (d) Based on the audit report, the Department's Board shall verify the computations made by housing finance division staff and, by resolution shall authorize the transfer, except as provided by subsections (e)-(g) of this section, to the Housing Trust Fund on or before January 10 of each year an amount equal to one-half of the housing finance division's unencumbered fund balances in excess of 2.0% of total bond indebtedness. (e) If, at the time any annual audit required by subsection (b) of this section is concluded, the housing finance division's unencumbered fund balances exceed 4.0% of its total bond indebtedness, the amount transferred on or before the next January 10 shall consist of all amounts in excess of that 4.0%. (f) Notwithstanding subsection (e) of this section, if, at the time any annual audit required by subsection (b) of this section is concluded, a nationally recognized rating agency has recommended the housing finance division to maintain unencumbered fund balances in excess of the amount permitted by subsection (d) of this section to be maintained as unencumbered fund balances, as a condition to achieving or maintaining a rating of at least Aa/A+ on all or a portion of the bond indebtedness of the housing finance division that is issued under an open indenture or an open flow of funds, the amount transferred on or before each January 10 shall consist of all funds in excess of the amount required by the rating agency to be held as unencumbered fund balances. (g) Not withstanding subsection (e) of this section, if, at the time any annual audit required by subsection (b) of this section is concluded, a nationally recognized rating agency has recommended the housing finance division to increase the amount of its unencumbered fund balances to achieve or maintain a financially sound condition or to prevent a decrease in the long-term debt rating maintained on all or a portion of the bond indebtedness, the Department may not make further annual transfers to the Housing Trust Fund until all requirements and conditions of the rating agency have been met. (h) In addition to the money transferred into the housing trust fund under this section, the Department shall transfer into the fund the amount of any origination fee, asset oversight fee, and servicing fee the Department or the Texas State Affordable Housing Corporation receives in relation to the administration of its 501 (c) (3) bond program established pursuant to sec.2306.358 that exceeds the amount needed by the Department or the Texas State Affordable Housing Corporation to pay its operating and overhead costs and fund reserves, including an insurance reserve or credit enhancement reserve established by the Board in administering the program. (i) Interest earned by the Capital Trust Fund shall be deposited to the credit of the Housing Trust Fund. (j) The Housing Trust Fund provided for by this section is not subject to the Texas Trust Code (Property Code sec.111.001, et seq.). sec.51.5. Allocation of Housing Trust Funds. (a) Funds shall be allocated to achieve a broad geographical distribution taking into account the number and percentage of low, very low, and extremely low income persons and families in different geographical areas of the State. (b) In allocating funds under the Housing Trust Fund, special attention shall be paid to equitably serving the housing needs of low, very low, and extremely low income persons and families residing in rural and non-metropolitan areas. (c) No more than 10% of the housing trust funds allocated each fiscal year shall be distributed to community housing development organizations and nonprofit organizations for capacity building. (d) At least 35% of the housing trust funds allocated each funding cycle shall be distributed to community housing development organizations. This 35% will be based on the amount of funds remaining after funds identified in subsection (c) of this section are allocated. In the event that there is an insufficient number of qualifying applicants for this allocation, any remaining funds will then be made available to other qualifying applicants, as specified in the Program Guidelines. (e) The Department shall utilize its best efforts to apply at least 50% of the housing trust funds allocated each funding cycle to non-metropolitan areas of the state. (f) No more than 10% of the yearly balance of the housing trust fund may be used by the Department to acquire real property. (g) The Department shall utilize its best efforts to apply at least 15% of the housing trust funds allocated each fiscal year to housing assistance for individuals and families earning less than 30% of median family income, and a minimum of 20% of the allocated funds for individuals and families earning between 31 and 60% of median family income. (h) Bond indenture requirements governing expenditure of bond proceeds deposited in the housing trust fund shall govern and prevail over all other allocation requirements established in this section. However, the Department shall distribute these funds in accordance with the requirements of this section to the extent possible. (i) Not more than 10% of any biennium allocation of Housing Trust Fund program funds may be set aside to create a pre-development loan fund to be used as matching funds with outside funds. sec.51.6. Basic Eligible Activities. The Department shall make grants and loans from the Housing Trust to Eligible Applicants for purposes consistent with sec.5.2 of this title (related to Program Goals and Objectives). Eligible uses of trust funds include, but are not limited to the following: (1) To fund housing development costs for a housing project or to provide down- payment assistance, credit enhancement, direct loans and interest rate reduction assistance to low, very low, and extremely low income persons and families, and persons with special needs. (2) To provide predevelopment costs for eligible housing projects. Such assistance shall be provided in the form of a loan to be repaid to the housing trust fund from construction loan proceeds or other project income. The Board may waive repayment of the loan, in whole or in part, if there are impediments to project development that the Board determines are reasonably beyond the control of the applicant. (3) To provide for capacity building for community housing development and nonprofit organizations that show sufficient evidence of having strong community support and a strong likelihood of producing housing for low, very low, and extremely low income persons and families within two years of the date that assistance is provided. Where possible, the Recipient of funds under this subsection will build in fees, or other ongoing sources of income, into the services that they provide, so that repeated support will not be needed. (4) To support Department sponsored activities authorized under the Act, subject to the requirements of the Housing Trust Fund and implementing regulations. sec.51.7. Ineligible Activities and Restrictions. Any activity is ineligible for housing trust funds unless the activity will result in the financing, acquisition, rehabilitation, or development of affordable, decent, safe, and sanitary housing for low, very low, and extremely low income persons or families, or will provide capacity building to community housing development organizations and nonprofit organizations engaged in developing housing for low, very low, and extremely low income persons and families. (1) General Government Expenses. Housing trust funds may not be used to carry out the regular responsibilities of the unit of general local government. (2) Political Activities. Housing trust funds may not be used to finance the use of facilities or equipment for political purposes or to engage in other partisan political activities, such as candidate forums, voter transportation, or voter registration. (3) Prohibition against Involuntary Displacement. Housing trust funds shall not be utilized on a project that has the effect of permanently and involuntarily displacing low, very low, and extremely low income persons and families. (4) Restriction on Affordability of Multifamily Housing. Any multifamily housing developed or rehabilitated with housing trust funds, in whole or in part, shall remain affordable to income-qualified households for at least 20 years. sec.51.8. Maintenance of Effort. (a) Housing trust funds shall not be used by local government to supplant or replace existing housing funds for housing for low, very low, and extremely low income persons and families. (b) If other federal funds are available to a local government applicant for any proposed housing project, the local government applicant shall affirmatively show that it has undertaken reasonable efforts to secure such funding for the proposed housing project. sec.51.9. Application Procedure and Requirements. (a) The Department shall, from time to time, solicit applications for loans and grants from Eligible Applicants. (b) The applicant shall submit, in an application form and process prescribed by the Department, project information including, but not limited to: (1) A written description of the housing project including but not limited to, the number of units, unit mix, proposed rents or mortgage payments, site location, the proposed program of services to occupants and the availability of these services in the future, project amenities, names and addresses of all individuals with any financial interest in the proposed housing project, personal and organizational financial statements and audit reports, and any other information the Board may require; (2) A statement of housing project purpose indicating the housing type and tenants or homeowners to be housed, and the length of time the units will be committed available for low, very low, and extremely low income households; (3) A statement describing the need for the proposed housing development given existing housing and economic conditions in the service area; (4) A projection of housing project expenses and income; (5) Grant or loan amount requested and total housing project development costs, including a description of all committed or anticipated project funding and funding sources, and a statement describing efforts to secure other sources of funding, including federal funds and funds from private sources; (6) A narrative describing the housing project sponsor/developer/owner/ manager experience in developing and operating housing projects; (7) A description of any temporary displacement resulting from the proposed housing project, including a statement whether the housing project has the effect of permanently and involuntarily displacing persons and families of low income; (8) The geographical area of the state in which the project will occur; (9) A narrative describing how the proposed project addresses each of the evaluation factors listed in sec.51.10 of this title (relating to Criteria for Funding); (10) The affirmative marketing plan of the housing project sponsor on marketing to racial and ethnic minorities and person with special needs; (11) Project completion schedule; (12) Non-discrimination statements; (c) An individual or family who is an Eligible Applicant shall submit a request for funding in an application form and process prescribed by the Department to include the items listed in subsection (b) of this section that are relevant to individuals and persons applying for loans and grants. (d) Capacity building applicants will be required to submit a specific application form that will follow guidelines prescribed by the Department. sec.51.10.Criteria for Funding. (a) In considering applications for funding, the Department and Board shall consider the following: (1) Threshold Criteria. To be considered for funding, a housing project must first demonstrate that it meets all the threshold criteria set forth as follows: (A) The project is consistent with the requirements established in this rule. (B) The applicant provides evidence of their ability to carry out the project in the areas of financing, acquiring, rehabilitating, developing or managing affordable housing development. (C) The project addresses and identifies housing need. This assessment will be based on statistical data, surveys and other indicators of need as appropriate. (2) Evaluation Factors. The Board and Department will consider applications for housing trust funds using the following system: (A) Applications will be evaluated against the threshold criteria during each funding cycle. Applications not meeting the threshold criteria will be returned to the applicant without further review. (B) Applications not meeting the threshold criteria may be revised and subsequently resubmitted for consideration. (C) Applications will then be ranked according to the criteria hereinafter set forth: (i) leveraging of funds: the extent to which the project will leverage State funds with other resources, including federal resources, and private sector funds; (ii) community involvement: the extent to which the project involves a broad range of community representatives, including low, very low, and extremely low income individuals who may expect to reside in the proposed housing project, in the design and development of the proposed housing project; (iii) very low income targeting: the extent to which the project will provide safe, decent and affordable housing to very low income persons and families; (iv) long term affordability: the extent to which the project will ensure the longest possible use of assisted units as affordable housing for low, very low, and extremely low income persons and families; (v) housing need: the geographical area of the State to be served and the extent to which there is a need for safe, decent, and affordable housing in this area; (vi) special housing needs: the extent to which the project provides affordable housing and services for persons with special needs; (vii) financial feasibility: the extent to which the project is financially feasible, taking into consideration the contribution of housing trust funds, as determined in accordance with generally accepted underwriting standards as promulgated by federal insurers or other similar guarantors of such projects; (viii) need for funds: the extent to which other resources are not available in the locality to carry out the housing project; (ix) minority participation: the extent to which the project has minorities and/or women participating in the ownership, development or management of the project; (x) energy conservation: the extent to which the project design promotes energy and/or water conservation with the result of reducing residents' utility costs; (xi) innovation: the extent to which the project involves a new or particularly innovative approach for meeting housing needs in the area being served; (xii) services: the extent to which the project includes a program of services for occupants of the proposed housing including, but not limited to, programs that address home health care, mental health service, alcohol and drug treatment, job training, child care and case management and provides for tenant involvement in the development and administration of the services; (xiii) cost-effectiveness: the extent to which the project is cost-effective and provides the greatest number of affordable, decent, safe and sanitary low, very low , and extremely low income housing units for the least amount of housing trust funds expended or committed; (xiv) barriers to affordable housing: the extent to which local governments propose to eliminate or reduce barriers to affordable housing created by existing public policies, such as zoning regulations, building permit requirements, etc.; (xv) geographic balance: the extent to which the project will contribute to achieving a fair and equitable geographic distribution of housing trust funds. (b) The Department shall establish a system for assigning a weight to the preceding evaluation factors and giving priority to funding application according to the weight assigned. (c) The Board shall have final approval on all recommendations for funding. sec.51.11.Prohibition Against Discrimination. (a) No person shall on the ground of race, color, family composition (reasonable occupancy standards are acceptable), national origin or sex, be excluded for participation in, be denied the benefits of, or be subjected to discrimination under any program or activity funded in whole or in part with housing trust funds made available under the Act. (b) Whenever the Department determines that a Recipient of housing trust funds has failed to comply with paragraph (a) of this subsection, the Department shall attempt to secure compliance. If within a reasonable period of time the Recipient fails to comply, the Department may: (1) refer the matter to the State Attorney General with a recommendation that an appropriate civil action be instituted; or (2) take such other action as may be provided by law. sec.51.12. Other Program Requirements. (a) Employment opportunities. (1) No person shall be discriminated against on the basis of race, color, handicap, religion, sex, or national origin in all phases of employment during the performance of contracts as assisted with housing trust funds made available under the Act. (2) Contractors and subcontractors on Housing Trust Fund assisted contracts shall take affirmative action to ensure fair treatment in employment, upgrading, demotion, or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training or apprenticeship. (3) In connection with the planning and carrying out of any project assisted under the Act, to the greatest extent feasible, opportunities for training and employment shall be given to low, very low, and extremely low income persons residing within the area in which the project is located. (b) Conflict of Interest. (1) Conflict Prohibited. No person described in paragraph (2) of this subsection who exercises or has exercised any functions or responsibilities with respect to Housing Trust Fund activities under the Act or who is in a position to participate in a decision making process or gain inside information with regard to such activities, may obtain a personal or financial interest or benefit from a Housing Trust Fund assisted activity, or have an interest in any Housing Trust Fund contract, subcontract or agreement or the proceeds thereunder, either for themselves or those with whom they have family or business ties, during their tenure or for one year thereafter. (2) Persons Covered. The conflict of interest provisions of paragraph (1) of this subsection apply to any person who is an employee, agent, consultant, officer, elected official or appointed official of the Department or State of Texas. These provisions shall not however, restrict the Department from utilizing trust funds as authorized under sec.51.6(d) of this title (relating to Basic Eligible Activities). sec.51.13. Citizen Participation. (a) The Department shall hold at least one public hearing annually, and additional public hearings prior to consideration if any proposed significant changes to these rules, to solicit comments from the public, eligible applicants, and Recipients on the Department's rule, guidelines, and procedures for the Housing Trust Fund. (b) The Department shall consider the comments it receives at public hearings. The Board shall annually review the performance, administration, and implementation of the Housing Trust Fund in light of the comments it receives. At this time the Board shall also review funding goals and set-asides established in sec.51.5. of this title (relating to Allocation of Housing Trust Funds). (c) Applications for housing trust funds are public information and the Department shall afford the public an opportunity to comment on proposed housing projects prior to making awards. (d) Complaints will be handled in accordance with the Departments complaint procedures of 10 TAC, sec.12. sec.51.14. Records to be Maintained. (a) The Department shall maintain the following records on projects assisted with housing trust funds: (1) A copy of all applications submitted in response to a request for funding proposals; (2) A copy of a written agreement with each Recipient of housing trust funds indicating the total number of dwelling units which will be financed, rehabilitated, acquired, constructed, or assisted with housing trust funds; (3) The total cost of the project, including both housing trust funds and other funds; (4) The agreement with the Recipient on the affordability of the dwelling unit; (5) The size and income of the household for each unit occupied by a low, very low, or extremely low income person or family; (6) Data on the extent to which each racial and ethnic group and single-headed households (by gender of household head) have applied for and benefited from any project or activity funded in whole or in part with housing trust funds made available under the Act. These data shall be updated annually. (b) The Department shall also require, at least on an annual basis, a report from Recipients of housing trust funds. This report shall provide information including, but not limited to: (1) such information as may be necessary to determine whether a project funded with housing trust is benefiting low, very low, and extremely low income persons and families; (2) the monthly rent or mortgage payment for each dwelling unit in each structure assisted with housing trust funds, and (3) such information as may be necessary to determine whether Recipients have carried out their housing activities in accordance with the requirements and primary objectives of the housing trust fund and implementing regulations. sec.51.16. Department Funding. Notwithstanding the application procedures set forth under sec.51.9 of this title (relating to Application Procedure and Requirements), the Board, in its discretion may allocate funds to the Department to acquire real property to endow the housing trust fund. sec.51.17. Funding Cap. No more than 25% of the housing trust funds may be allocated to any single project for each/any calendar year. The Board in its discretion, may waive the provision of this section. sec.51.18.Waiver. The Board may, in its discretion, waive any one or more of the rules set forth in this chapter to accomplish its legislative mandates and/or bond criteria. 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. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800737 Larry Paul Manley Executive Director Texas Department of Housing and Community Affairs Effective date: February 5, 1998 Proposal publication date: October 24, 1997 For further information, please call: (512) 475-3726 TITLE 16. ECONOMIC REGULATION PART VIII. Texas Racing Commission CHAPTER 305.Licenses for Pari-Mutuel Racing SUBCHAPTER B.Individual Licenses 16 TAC sec.305.33 The Texas Racing Commission adopts an amendment to sec.305.33, concerning the license badge without changes to the proposed text as published in the December 5, 1997, issue of the Texas Register (22 TexReg 11908). The amendment is adopted so that enforcement and regulatory personnel will be able to tell at a glance when a particular license expires. This will help ensure only licensed personnel are permitted to participate in pari-mutuel racing, as required by state law. The amendment modifies the information required to be placed on the license badge to include the month and year the license expires. The Commission has implemented a system of revolving expiration dates for occupational licenses and the change in the license badge style aids in that new system. No comments were received regarding the adoption of the proposal. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.5.01 which requires the Commission to issue a license credential to every occupational licensee; and sec.7.06, which requires the Commission to issue identification cards to occupational licensees. 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. Filed with the Office of the Secretary of State on January 15, 1998. TRD-9800652 Paula C. Flowerday General Counsel Texas Racing Commission Effective date: February 10, 1998 Proposal publication date: December 5, 1997 For further information, please call: (512) 833-6699 SUBCHAPTER C.Racetrack Licenses General Provisions 16 TAC sec.305.70 The Texas Racing Commission adopts an amendment to sec.305.70, concerning officials' fees without changes to the proposed text as published in the December 5, 1997, issue of the Texas Register (22 TexReg 11909). The amendment is adopted to ensure the Commission will be in full compliance with the statutory mandate in Texas Civil Statutes, Article 179e, sec.3.07(a). The amendment changes the amount of the officials' fee that pari-mutuel racetracks are required to pay to the Commission to offset the costs of providing officials. No comments were received regarding the adoption of the proposal. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.3.07 which authorizes the Commission to establish an officials fee 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. Filed with the Office of the Secretary of State on January 15, 1998. TRD-9800653 Paula C. Flowerday General Counsel Texas Racing Commission Effective date: February 10, 1998 Proposal publication date: December 5, 1997 For further information, please call: (512) 833-6699 CHAPTER 307.Practice and Procedure SUBCHAPTER C.Proceedings by Stewards and Racing Judges Appeals to Commission 16 TAC sec.307.261 The Texas Racing Commission adopts an amendment to sec.307.261, concerning appeals to the Commission from rulings issued by the stewards and racing judges without changes to the proposed text as published in the December 5, 1997, issue of the Texas Register (22 TexReg 11910). The amendment is adopted to ensure pari-mutuel racing will be of the utmost integrity. The amendment clarifies the eligibility status of race animals that are involved in an appeal that affects the official order of finish of a race. No comments were received regarding the adoption of the proposal. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.06, which authorizes the Commission to adopt rules on all matters relating to the operation of racetracks; and Texas Government Code, sec.2001.004, which requires the Commission to adopt rules of practice and procedure. 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. Filed with the Office of the Secretary of State on January 15, 1998. TRD-9800654 Paula C. Flowerday General Counsel Texas Racing Commission Effective date: February 10, 1998 Proposal publication date: December 5, 1997 For further information, please call: (512) 833-6699 CHAPTER 311.Conduct and Duties of Individuals SUBCHAPTER B.Specific Licensees General Provisions 16 TAC sec.311.106 The Texas Racing Commission adopts an amendment to sec.311.106, concerning stable names without changes to the proposed text as published in the December 5, 1997, issue of the Texas Register (22 TexReg 11910). The amendment is adopted to ensure the Commission's rules will be consistent with applicable state law. The Texas Racing Act was revised by sunset legislation effective September 1, 1997, and in that legislation, the Commission is prohibited from adopting rules which restrict nondeceptive advertising. The amendment implements that legislation by eliminating the restrictions on the use of stable names that advertise products or services. No comments were received regarding the adoption of the proposal. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.3.021 which prohibits the Commission from restricting nondeceptive advertising; and sec.6.06, which authorizes the Commission to adopt rules on all matters relating to the operation of pari-mutuel racetracks. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on January 15, 1998. TRD-9800655 Paula C. Flowerday General Counsel Texas Racing Commission Effective date: February 10, 1998 Proposal publication date: December 5, 1997 For further information, please call: (512) 833-6699 CHAPTER 313.Officials and Rules of Horse Racing SUBCHAPTER A.Officials Duties of Stewards 16 TAC sec.313.21 The Texas Racing Commission adopts an amendment to sec.313.21, concerning the eligibility requirements for stewards without changes to the proposed text as published in the December 5, 1997, issue of the Texas Register (22 TexReg 11911). The amendment is adopted to ensure the Commission's rules will be consistent with applicable state law. The Texas Racing Act was revised by sunset legislation effective September 1, 1997, and that legislation made all three stewards at horse racetracks employees of the Commission. The amendment implements that legislation by removing the reference in the rules to a list of approved stewards for use by racetracks when employing stewards. No comments were received regarding the adoption of the proposal. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.3.07, which requires the Commission to employ all stewards at pari-mutuel horse racetracks. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on January 15, 1998. TRD-9800656 Paula C. Flowerday General Counsel Texas Racing Commission Effective date: February 10, 1998 Proposal publication date: December 5, 1997 For further information, please call: (512) 833-6699 16 TAC sec.313.22 The Texas Racing Commission adopts an amendment to sec.313.22, concerning the general duties of stewards without changes to the proposed text as published in the December 5, 1997, issue of the Texas Register (22 TexReg 11911). The amendment is adopted to ensure pari-mutuel racing will be humane for the race horses. The amendment specifically authorizes the stewards at a pari-mutuel horse racetrack to order an endoscopic examination to be performed on a horse, at the expense of the horse's owner, to determine whether foreign material, such as a sponge, is obstructing the flow of air into the horse's lungs. No comments were received regarding the adoption of the proposal. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.3.07, which authorizes the Commission to adopt rules specifying the authority of the stewards; sec.3.16, which authorizes the Commission to adopt rules prohibiting the unlawful influencing of the outcome of a race; and sec.6.06, which authorizes the Commission to adopt rules on all matters relating to the operation of pari- mutuel racetracks. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on January 15, 1998. TRD-9800657 Paula C. Flowerday General Counsel Texas Racing Commission Effective date: February 10, 1998 Proposal publication date: December 5, 1997 For further information, please call: (512) 833-6699 SUBCHAPTER B.Entries, Declarations, and Allowances Allowances and Penalties 16 TAC sec.313.166 The Texas Racing Commission adopts an amendment to sec.313.166, concerning the apprentice weight allowance without changes to the proposed text as published in the December 5, 1997, issue of the Texas Register (22 TexReg 11912). The amendment is adopted to ensure pari-mutuel racing will be of the utmost integrity. The amendment clarifies the length of time a jockey is permitted to ride with an apprentice weight allowance and the circumstances under which the commission may extend that time. The amendment makes the Commission's rules consistent with the model rule on apprentice jockeys developed by the Jockey Guild. No comments were received regarding the adoption of the proposal. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.06, which authorizes the Commission to adopt rules on all matters relating to the operation of pari-mutuel racetracks. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on January 15, 1998. TRD-9800658 Paula C. Flowerday General Counsel Texas Racing Commission Effective date: February 10, 1998 Proposal publication date: December 5, 1997 For further information, please call: (512) 833-6699 SUBCHAPTER D.Running of the Race Jockeys 16 TAC sec.313.406 The Texas Racing Commission adopts an amendment to sec.313.406, concerning colors and number without changes to the proposed text as published in the December 5, 1997, issue of the Texas Register (22 TexReg 11913). The amendment is adopted to ensure the Commission's rules will be consistent with applicable state law. The Texas Racing Act was revised by sunset legislation effective September 1, 1997, and in that legislation, the Commission is prohibited from adopting rules which restrict nondeceptive advertising. The amendment implements that legislation by eliminating the restrictions on advertising on jockey clothing. No comments were received regarding the adoption of the proposal. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.3.021 which prohibits the Commission from restricting nondeceptive advertising; and sec.6.06, which authorizes the Commission to adopt rules on all matters relating to the operation of pari-mutuel racetracks. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on January 15, 1998. TRD-9800659 Paula C. Flowerday General Counsel Texas Racing Commission Effective date: February 10, 1998 Proposal publication date: December 5, 1997 For further information, please call: (512) 833-6699 CHAPTER 315.Officials and Rules for Greyhound Racing SUBCHAPTER A.Officials Appointment of Officials 16 TAC sec.315.2, sec.315.3 The Texas Racing Commission adopts amendments to sec.315.2 and sec.315.3, concerning the racing judges and substitute officials without changes to the proposed text as published in the December 5, 1997, issue of the Texas Register (22 TexReg 11913). The amendments are adopted to ensure the Commission's rules will be consistent with applicable state law. The Texas Racing Act was revised by sunset legislation effective September 1, 1997, and that legislation made all three racing judges at greyhound racetracks employees of the Commission. The amendment implements that legislation by removing the reference in the rules to a list of approved racing judges for use by racetracks when employing racing judges and to the references to a racetrack appointing substitute judges. No comments were received regarding the adoption of the proposal. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.3.07, which requires the Commission to employ all racing judges at pari-mutuel greyhound racetracks; and sec.6.06, which authorizes the Commission to adopt rules on all matters relating to the operation of pari-mutuel racetracks. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on January 15, 1998. TRD-9800660 Paula C. Flowerday General Counsel Texas Racing Commission Effective date: February 10, 1998 Proposal publication date: December 5, 1997 For further information, please call: (512) 833-6699 TITLE 22. EXAMINING BOARDS PART XI. Board of Nurse Examiners CHAPTER 215.Nurse Education 22 TAC sec.sec.215.2-215.6, 215.14, 215.20 The Board of Nurse Examiners adopts amendments to sec.sec.215.2-215.6, concerning Definitions, New Programs, Accreditation, Pass Rate of Graduates on the National Council Licensure Examination for Registered Nurses and Administration and Organization and new sec.215.14 and sec.215.20 relating to Extended Campus/Extension Site and Closing of a Nursing Program or Distance Education Initiative with no changes in the proposed text as published in the December 12, 1997, issue of the Texas Register (22 TexReg 12203). The amendments and new sections are being adopted to address the delivery of nursing courses via distance learning technologies. In January 1997 the Board of Nurse Examiners (BNE) directed the Advisory Committee for Education (ACE) to review current education rules regarding extended campuses/extension sites and to make recommendations for possible rule changes. A subcommittee of the ACE was formed consisting of nursing faculty and nursing practice representatives with expertise in distance education. The subcommittee met on four occasions and developed recommended rule changes which were presented and approved by ACE who then sent their recommendations to the Board. The amendments and new rules will streamline the process for nursing programs to deliver partial and/or complete programs of study to physical locations separated by distance from their main campus. No comments were received. The amendments are adopted under the Nursing Practice Act, (Texas Civil Statutes, Article 4514), sec.1, which provides the Board of Nurse Examiners with the authority and power to make and enforce all rules and regulations necessary for the performance of its duties and conducting of proceedings before it and Article 4518, sec.1, which requires the Board to prescribe and publish the minimum requirements and standards for a course of study in programs which prepare professional nurse practitioners. All other regulations necessary to conduct accredited schools of nursing and educational programs for the preparation of professional nurses shall be as prescribed by the Board. There are no other rules, codes, or statutes that will be affected by this proposal. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on January 14, 1998. TRD-9800585 Katherine A. Thomas, MN, RN Executive Director Board of Nurse Examiners Effective date: February 3, 1998 Proposal publication date: December 12, 1997 For further information, please call: (512) 305-6811 22 TAC sec.215.14, sec.215.20 The Board of Nurse Examiners adopts the repeal of sec.215.14 and sec.215.20, concerning Extended Campus/Extension Site and Closing of a Nursing Program with no changes in the proposed text as published in the December 12, 1997, issue of the Texas Register (22 TexReg 12205). The adopted repeal will allow for the adoption of new sections that will streamline the process for nursing programs to deliver partial and/or complete programs of study to physical locations separated by distance from their main campus. No comments were received. The adopted repeal is adopted under the Nursing Practice Act, (Texas Civil Statutes, Article 4514), sec.1, which provides the Board of Nurse Examiners with the authority and power to make and enforce all rules and regulations necessary for the performance of its duties and conducting of proceedings before it. There are no other rules, codes, or statutes that will be effected by this proposal. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on January 14, 1998. TRD-9800584 Katherine A. Thomas, MN, RN Executive Director Board of Nurse Examiners Effective date: February 3, 1998 Proposal publication date: December 12, 1997 For further information, please call: (512) 305-6811 CHAPTER 217.Licensure and Practice 22 TAC sec.217.5 The Board of Nurse Examiners adopts an amendment to sec.217.5, concerning Temporary License and Endorsement with no changes in the proposed text as published in the December 12, 1997, issue of the Texas Register (22 TexReg 12206). The adopted amendment will harmonize the procedures and fees charged for eligibility determination for examination applicants, declaratory order petitioners and endorsees by equalizing the procedures and fees applied to all persons seeking licensure, regardless of the method of entry. No comments were received. The amendments are adopted under the Nursing Practice Act, (Texas Civil Statutes), Article 4514, sec.1, which provides the Board of Nurse Examiners with the authority and power to make and enforce all rules and regulations necessary for the performance of its duties and conducting of proceedings before it and Article 4525(a) which authorizes the Board to refuse to admit persons to the licensing examination. Article 4525(a) is affected by this section. 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. Filed with the Office of the Secretary of State on January 14, 1998. TRD-9800586 Katherine A. Thomas, MN, RN Executive Director Board of Nurse Examiners Effective date: February 3, 1998 Proposal publication date: December 12, 1997 For further information, please call: (512) 305-6811 CHAPTER 221.Advanced Practice Nurses 22 TAC sec.221.1, sec.221.12 The Board of Nurse Examiners adopts amendments to sec.221.1 and sec.221.12, concerning Definitions and Functions with no changes in the proposed text as published in the December 12, 1997, issue of the Texas Register (22 TexReg 12206). The amendments are being adopted in order that the definition of protocols/ policies/practice guidelines between physicians and APNs more accurately reflect the Board of Medical Examiners' rules made pursuant to legislation passed in 1995. The current rule became effective in June, 1995. Adoption of these amendments will increase assurance that the APN and the physician will review their protocols/ policies/practice guidelines more frequently, thus assuring better protection of the public. No comments were received. The amendments are adopted under the Nursing Practice Act, (Texas Civil Statutes, Article 4514), sec.1, which provides the Board of Nurse Examiners with the authority and power to make and enforce all rules and regulations necessary for the performance of its duties and conducting of proceedings before it and Article 4514, sec.8, which provides the Board of Nurse Examiners the authority and power to adopt rules for approval of a registered nurse to practice as an advanced practice nurse. There are no other rules, codes, or statutes that will be affected by this proposal. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on January 14, 1998. TRD-9800587 Katherine A. Thomas, MN, RN Executive Director Board of Nurse Examiners Effective date: February 3, 1998 Proposal publication date: December 12, 1997 For further information, please call: (512) 305-6811 CHAPTER 222.Advanced Practice Nurses with Limited Prescriptive Authority 22 TAC sec.222.1 The Board of Nurse Examiners adopts an amendment to sec.222.1, concerning Definitions with no changes in the proposed text as published in the December 12, 1997, issue of the Texas Register (22 TexReg 12207). The amendment is being adopted to bring the Board's rules into compliance with statutes and expands the practice scope of advanced practice nurses. During the 75th Legislative Session, House Bill 2846 was passed relating to the provisions of health care services by advanced practice nurses including expansion of sites for limited prescriptive authority. Specifically, the law amended the definition of physician's primary practice site to include "a clinic operated by or for the benefit of a public school district for the purpose of providing care to the students of that district and the siblings of those students, if consent to treatment at that clinic is obtained." The amendment will provide the public with expanded access to health care through the addition of the definition of primary practice site to include the public school district clinics. No comments were received. The amendments are adopted under the Nursing Practice Act, (Texas Civil Statutes, Article 4514), sec.1, which provides the Board of Nurse Examiners with the authority and power to make and enforce all rules and regulations necessary for the performance of its duties and conducting of proceedings before it and Article 4514, sec.8, which provides the Board of Nurse Examiners the authority and power to adopt rules for approval of a registered nurse to practice as an advanced practice nurse. There are no other rules, codes, or statutes that will be affected by this proposal. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on January 14, 1998. TRD-9800588 Katherine A. Thomas, MN, RN Executive Director Board of Nurse Examiners Effective date: February 3, 1998 Proposal publication date: December 12, 1997 For further information, please call: (512) 305-6811 PART XVII. Texas State Board of Plumbing Examiner CHAPTER 361.Administration Petition for Adoption of Rules 22 TAC sec.361.22 The Texas State Board of Plumbing Examiners adopts an amendment to sec.361.22, concerning Contested Cases: Hearings, without changes to the proposed text as published in the December 12, 1997, issue of the Texas Register (22 TexReg 12208). The amendment specifies that an applicant that has been denied an examination, license, or endorsement, has 20 days to request a hearing after Board notification according to the Act and the Administrative Procedure Act. No comments were received regarding the adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this 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. Filed with the Office of the Secretary of State on February 16, 1998. TRD-9800739 Robert L. Maxwell Chief of Field Services/Investigations Texas State Board of Plumbing Examiners Effective date: February 5, 1998 Proposal publication date: December 12, 1997 For further information, please call: (512) 458-2145 Ext. 233 22 TAC sec.361.28 The Texas State Board of Plumbing Examiners adopts an amendment to sec.361.28, concerning Preliminary Criminal Reviews, without changes to the proposed text as published in the December 12, 1997, issue of the Texas Register (22 Tex Reg 12208). The amendment specifies the process for the preliminary review of applicants requests for examination or licensure, when the applicants have previous criminal convictions. The amendment allows applicants that do not represent a threat to the health and safety of the public by holding a plumbing license, to be approved for examination or licensure by the Chief Examiner or Chief Field Representative. The word "drugs" was changed from the original languange to the term "controlled substance" for clarification purposes and does not change the meaning or intent of the rule. No comments were received regarding the adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this 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. Filed with the Office of the Secretary of State on February 16, 1998. TRD-9800740 Robert L. Maxwell Chief of Field Services/Investigations Texas State Board of Plumbing Examiners Effective date: February 5, 1998 Proposal publication date: December 12, 1997 For further information, please call: (512) 458-2145 Ext. 233 CHAPTER 365.Licensing Petition for Adoption of Rules 22 TAC sec.365.11 The Texas State Board of Plumbing Examiners adopts an amendment sec.365.11, concenring Exemptions, without changes to the proposed text as published in the December 12, 1997, issue of the Texas Register (22 Tex Reg 12209). The amendment specifies that another state must have substantially equivalent requirements for licensure in order for the Board to waive any licensing requirement. No comments were received regarding the adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this 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. Filed with the Office of the Secretary of State on February 16, 1998. TRD-9800741 Robert L. Maxwell Chief of Field Services/Investigations Texas State Board of Plumbing Examiners Effective date: February 5, 1998 Proposal publication date: December 12, 1997 For further information, please call: (512) 458-2145 Ext. 233 22 TAC sec.365.12 The Texas State Board of Plumbing Examiners adopts an amendment sec.365.12, concerning Licensing of Persons with Criminal Backgrounds, without changes to the proposed text as published in the December 12, 1997, issue of the Texas Register (22 TexReg 12209). The amendment specifies that the Board considers the crimes of theft and possession of a controlled substance to be directly related to the duties and responsibilities of licensed plumbers and plumbing inspectors. No comments were received regarding the adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this 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. Filed with the Office of the Secretary of State on February 16, 1998. TRD-9800742 Robert L. Maxwell Chief of Field Services/Investigations Texas State Board of Plumbing Examiners Effective date: February 5, 1998 Proposal publication date: December 12, 1997 For further information, please call: (512) 458-2145 Ext. 233 CHAPTER 367.Enforcement 22 TAC sec.367.1 The Texas State Board of Plumbing Examiners adopts an amendment to sec.367.1, concerning General Provisions, without changes to the proposed text as published in the December 12, 1997, issue of the Texas Register (22 TexReg 12210). The amendment specifies the duties of the Board in regard to all applicable laws including the Act and Board Rules. This amendment is being proposed to clarify the requirements for potable water supply piping for every plumbing fixture including water closet plumbing fixtures and other equipment that use water to be installed to prevent the back flow of non-potable substances into the potable water system according to the provisions of a state approved plumbing code. No comments were received regarding the adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6243-101, which provide the Texas State Board of Plumbing Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this 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. Filed with the Office of the Secretary of State on February 16, 1998. TRD-9800743 Robert L. Maxwell Chief of Field Services/Investigations Texas State Board of Plumbing Examiners Effective date: February 5, 1998 Proposal publication date: December 12, 1997 For further information, please call: (512) 458-2145 Ext. 233 TITLE 25. HEALTH SERVICES PART I. Texas Department of Health CHAPTER 97. Communicable Diseases Immunization Requirements in Texas Elementary and Secondary Schools and Institutions of Higher Education 25 TAC sec.97.63 The Texas Department of Health (department), by majority vote of the Texas Board of Health (board) on January 16, 1998, enters this order finally adopting an amendment to sec.97.63, concerning immunization requirements for children in Texas elementary and secondary schools and institutions of higher education. This section is adopted without changes to the proposed text as published in the September 26, 1997, issue of the Texas Register (22 TexReg 9598), and therefore the section will not be republished. This amendment will increase the age at which the fourth dose of diphtheria- tetanus-pertussis/diphtheria-tetanus-acellular pertussis vaccine is required to 18 months, from 15 months. Current medical recommendations indicate that the fourth dose of diphtheria-tetanus-pertussis/diphtheria-tetanus-acellular pertussis vaccine should be given within the age range of 15 to 18 months. This amendment will allow pediatricians greater flexibility in scheduling immunizations, thus, increasing the efficiency of pediatric care. The following comments were received concerning the proposed rules. Following each comment is the department's response and any resulting change(s). Comment: Eleven commenters concurred with the proposed change and remarked that it would facilitate compliance with the immunization requirements. Response: The department appreciates the time spent considering the proposed change. Comment: Three commenters objected to the proposed change on the ground that it would add another clinic or provider visit to the schedule and increased the possibility that a child would be out of compliance. Response: The department disagrees that the change would have this effect. Immunization requirements define the age by which a vaccination must be received in order to attend day-care or school and do not preclude vaccination administration at a recommended earlier age, if this is the clinic or provider's preference. No change was made to the rule text. The comments on the proposed rules received by the department during the comment period were submitted by three physicians, two department staff, the Corpus Christi-Nueces County Public Health District, the Wichita Falls-Wichita County Public Health District, the City of Lubbock Health Department, the Marshall- Harrison County Health District, the City of Dallas Department of Environmental and Health Services, two representatives of the Texas Children's Hospital Immunization Project, a board member of the Texas Congress of Parents and Teachers, and a representative of the Texas Association of School Nurses. This amendment is adopted under the Health and Safety Code, sec.81.004, which authorizes the Texas Board of Health (board) to adopt rules necessary for the effective administration and implementation of this chapter; sec.81.023, which authorizes the board to develop immunization requirements for children; and sec.12.001 which requires the board to adopt rules for the performance of each duty imposed by law on the board or department. This amendment affects the Health and Safety Code, Chapter 81. 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. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800793 Susan K. Steeg General Counsel Texas Department of Health Effective date: February 5, 1998 Proposal publication date: September 26, 1997 For further information, please call: (512) 458-7236 Provision of Anti-Rabies Biologicals 25 TAC sec.sec.97.121, 97.123-97.125 The Texas Department of Health (department), by majority vote of the Texas Board of Health (board) on January 16, 1998, enters this order finally adopting a repeal of sec.97.122, amendments to sec.sec.97.121, 97.123 - 97.124, and new sec.97.125, concerning provision of anti-rabies biologicals, without changes to the proposed text as published in the October 10, 1997, issue of the Texas Register (22 TexReg 10104), and therefore the sections will not be republished. Based on its experience in distributing these biologicals, the department believes these methods and criteria for distribution and reimbursement are the most efficient means of protecting public health consistent with the relevant statutes. The list of drugs formerly in sec.97.122 is summarized as "anti-rabies biologicals" and is included in the amendments and new rule. The amendments to sec.97.123 and sec.97.124 clarify that the department will provide anti-rabies biologicals for persons at risk of exposure to rabies, regardless of the person's ability to pay, but that the department is not responsible for providing anti-rabies biologicals to a person who has not had a bona fide exposure to rabies. The amendment to sec.97.124 specifies payment options for the person obtaining the anti-rabies biologicals. New sec.97.125 outlines the policies the off-site anti-rabies biologicals depots must adhere to in order to promote consistency throughout the state. No comments were received on the proposal during the comment period. The amendments and new section are adopted under the Health and Safety Code sec.12.033 which provides for fees for the distribution and administration of certain vaccines and sera; sec.826.025 which provides for vaccine and hyperimmune serum to be dispensed to persons at risk of being exposed to rabies; sec.826.011 which requires the Texas Board of Health (board) to adopt rules necessary to effectively administer Chapter 826; and sec.12.001 requires the board to adopt rules for the performance of each duty imposed by law on the board, the department, and the commissioner of health. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800834 Susan K. Steeg General Counsel Texas Department of Health Effective date: February 5, 1998 Proposal publication date: October 10, 1997 For further information, please call: (512) 458-7236 25 TAC sec.97.122 The repeal is adopted under the Health and Safety Code sec.12.033 which provides for fees for the distribution and administration of certain vaccines and sera; sec.826.025 which provides for vaccine and hyperimmune serum to be dispensed to persons at risk of being exposed to rabies; sec.826.011 which requires the Texas Board of Health (board) to adopt rules necessary to effectively administer Chapter 826; and sec.12.001 requires the board to adopt rules for the performance of each duty imposed by law on the board, the department, and the commissioner of health. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800833 Susan K. Steeg General Counsel Texas Department of Health Effective date: February 5, 1998 Proposal publication date: October 10, 1997 For further information, please call: (512) 458-7236 CHAPTER 137. Birthing Centers The Texas Department of Health (department), by majority vote of the Texas Board of Health (board) on January 16, 1998, enters this order finally adopting the repeal of sec.sec.137.1 - 137.11, and new sec.sec.137.1 - 137.4, 137.11 - 137.13, 137.21 - 137.23, and 137.31 - 137.34, 137.36 - 137.55, concerning licensure and regulation of birthing centers. The new sections are adopted with changes to the proposed text as published in the July 22, 1997, issue of the Texas Register TexReg 6818). Proposed sec.137.35 is being withdrawn from consideration for adoption; sec.137.35 is reserved for use at a later time. The repeal of sec.sec.137.1 - 137.11 are adopted without changes and will not be republished. The sections being repealed were adopted October 1986 to implement the Texas Birthing Center Licensing Act (Act) created by the 69th Legislature, 1985. These sections have not been substantially revised since that time. Since the implementation of the current rules, many changes have taken place. The department has experienced increased costs associated with regulating birthing centers and has determined the need for stronger compliance measures. The fees have been increased to make the program self-supporting. The application procedures for obtaining a license and enforcement provisions have been updated to meet the need for stronger compliance measures. The new sections will increase the quality of care for women choosing to give birth to their babies in a birthing center. The current sections are being repealed and replaced by the new sections with the advice of the Birthing Center Ad Hoc Rules Committee (committee), which includes physicians, certified nurse midwives, documented midwives, and two registered nurses from an area hospital, one member of a local city health department and department staff from the Health Facility Licensing Division, the Health Facility Compliance Division, the Bureau of Vital Statistics, and the Bureau of Clinical and Nutrition Services. The new sections reflect reorganization of the current sections; development of new language to address the areas of concern identified by the committee and department staff; and the deletion of current language to eliminate identified contradictions or unnecessary regulation. The new sections do not address the issues of work and the practice of the clinicians in the birthing center be they certified nurse midwives, documented midwives, or physicians. The clinicians practicing in the centers are subject to their respective regulatory and licensing boards. Issues about practice and complaints would be referred to the appropriate licensing boards and would not fall within the purview of the birthing center regulations. Sections 137.1 - 137.11 are being repealed to reorganize the chapter and update current language covering definitions; unregulated centers; exemptions; issuance and renewal of licenses; surveys; conditions of license; license denial, suspension, or revocation; operational and clinical standards; complaints and reporting of incidents; and access to records. New Subchapter A, sec.sec.137.1 - 137.4, covers general provisions. The general provisions include the purpose and scope for these rules; updated and clarified definitions of words and terms used throughout the chapter; a new schedule of fees which increases the license fee from $300 to $1,000 effective March 1, 1998, and the renewal license fee from $300 to $1,000 effective March 1, 1999; and the general provisions for licensure. Obsolete definitions have been removed, new definitions have been added, and other definitions have been clarified to reflect current terminology for the industry. The fee increases have been set by the Board of Health and are necessary to cover increased administrative costs that are incurred by the department to regulate birthing centers. Publication of these rules provide the required notification of fee increase required by Texas Civil Statutes, Article IX, sec.77. The general provisions for licensure state the minimum provisions for obtaining a birthing center license. New Subchapter B, sec.sec.137.11 - 137.13, establishes new licensing procedures. The new licensing procedures provide: updated license application and renewal procedures; updated requirements regarding change of ownership or services and closure of a birthing center; and the time period for processing a license. There will no longer be a Category A and a Category B license as these rules apply to all birthing centers. The information required to accompany the application has been expanded to provide the department with necessary information to better protect the health and safety of mothers and their newborn infants. Applicants will be required to disclose specific previous criminal convictions and enforcement actions that may affect licensure. New Subchapter C, sec.sec.137.21 - 137.23, establishes new enforcement procedures. The new section update and clarify survey procedures to reflect current practices; procedures for denial, suspension or revocation of a license; and procedures for handling complaints. The updated enforcement procedures provide the department with procedures for ensuring that birthing centers comply with the Act and these rules. Surveys will be performed by the department every three years instead of every year, unless the birthing center has received written deficiencies. New Subchapter D, sec.sec.137.31 - 137.55, establishes new operational and clinical standards for the provision and coordination of treatment and services provided by a birthing center. The standards include: operational and clinical policies and procedures; organizational structure and delegation of authority; personnel policies; qualifications and duties of staff (including supervision of professional and non-professional personnel); student health care professionals; physical, environmental, and infection control standards for birthing centers; disposition of medical waste; general requirements governing the provision and coordination of treatment and services; risk assessments; emergency services; disclosure requirements; prenatal care; serologic test for syphilis and Human Immunodeficiency Virus (HIV) infection; physician delegation; physician consultant procedures; and procedures for drugs and biologicals; labor and birth procedures; procedures for the care of the infant; discharge procedures; postpartum and postnatal care of the mother and infant; quality assurance program; clinical records; reporting and filing requirements; and other state and federal compliance requirements. The additional physical and environmental requirements for birthing centers include: providing a safe and sanitary environment that is properly constructed; providing a functioning sink and toilet; providing emergency lighting and a written fire and disaster plan; and ensuring that appropriate equipment is available to disinfect and sterilize instruments, equipment and supplies before use in the center. Birthing centers will be required to develop, implement, and enforce written policies governing the provision and coordination of treatment and services. Infection control standards have been established which require a birthing center to adopt, implement and enforce written standards for the prevention and control of nosocomial infections. These policies cover universal (standard) precautions; workplace guidelines; educational course work or training; cleaning and laundry services; decontamination, disinfection, and sterilization; and storage of sterile supplies. The birthing center will be required to provide the department with its organizational structure which clearly defines its lines of authority. Minimum qualifications and duties have been added for professional and nonprofessional staff. Birthing centers will be required to ensure that its birth attendants comply with accepted standards of practice be they certified nurse midwives, documented midwives, or physicians. A birthing center is required to have a quality assurance program. This program shall cover all health and safety aspects of client care for both mother and infant; and identify and address quality issues and implement corrective action plans. A birthing center will be required to file the birth certificate or ensure that its birth attendants file the birth certificate. If the Board of Health requires data collection relating to birth defects, the birthing center shall make this data available. Other federal and state requirements have been added relating specifically to documented midwives, laboratory and pharmacy services, professional nurse and licensed vocational nurse reporting and peer review, occupational safety and health, physician assistants, prescription medical devices, and trade and consumer practices, with which birthing centers are required to comply. Since birthing centers are no longer categorized as Category A or B, references to a specific category have been deleted. The requirements for clinical records have been updated to reflect current standards and allow the clinical record to be maintained as an original, a microfilmed copy, an optical disc imaging system, or a certified copy. A birthing center shall ensure that its birth attendants have clients tested for syphilis and HIV infection during pregnancy and within 24 hours of delivery. If a birthing center allows its documented midwives and certified nurse midwives to accept delegation of tasks by a physician, physician delegation provisions have been specified. A birthing center will be required to have procedures for consulting with a physician who shall be available within a recommended 20 minutes but with a required maximum of 30 minutes for emergency care. Provisions have been added to address student midwives and student health care professionals to allow them to obtain their clinical experience in a birthing center. In addition to the specific changes mentioned, other changes have been made to clarify and strengthen the intent of these sections as a result of public comment. The department held two public hearings at the following times and places: 10:00 a.m., Monday, August 18, 1997, Texas Department of Health, 1100 West 49th Street, Room K-100 Lecture Hall, Austin, Texas; and at 10:00 a.m., Friday, August 22, 1997, Brownsville City Library, 2600 Central Blvd., Brownsville, Texas. No one attended the public hearing in Austin. The following is a summary of comments received at the public hearing in Brownsville and during the comment period which ended September 5, 1997. COMMENT: Concerning the rules in general, a commenter asked "Can the department send staff to provide some kind of courses or training where we can actually be doing some of the procedures, like administering oxygen and doing an episiotomy, so that we can be giving better services to our patients?" RESPONSE: The department responds that providing training of this type is beyond the scope of what the department can provide; however the department will share the commenter's question with the Texas Midwifery Board. COMMENT: Concerning the rules in general, several commenters suggested inserting the word "documented" before the word "midwife" throughout the rules whenever there is reference made to the Texas Midwifery Act, because certified nurse- midwives are not regulated by the Texas Midwifery Act, but instead by the Board of Nurse Examiners. Several commenters also suggested that the word "midwife" be changed to "birth attendant" where appropriate. RESPONSE: The department agrees and has included the word "documented" before the word "midwife" in areas of the rules that relate only to documented midwives. The department has also changed the term "midwife" to "birth attendant" throughout the rules in places where it is the department's intent that the rules apply to all birth attendants. The department added the phrase "comply/conform to accepted standards of practice" throughout the rules where appropriate to state that birth attendants shall only provide services within their respective scope of practice. In sec.137.40, relating to risk assessments, the following language has been inserted as new subsection (a) and subsequent subsections were relettered "A center shall adopt, implement, and enforce a written risk assessment system that complies with this section, conforms to accepted standards of practice, and has been approved by the center's clinical director." This means, for example, that if a birth attendant's practice allows him or her to accept a client whose condition is other than low risk (by medical waiver), he or she will not be allowed to accept the client while functioning in a birthing center, because a birthing center is licensed to accept only clients with a low-risk pregnancy. COMMENT: Concerning the rules in general, a commenter asked for clarification regarding what the department's role is regarding complaints about licensed health care professionals. RESPONSE: The department agrees that clarification is needed and has added the following language in paragraph (9) of sec.137.21(d) "The department shall refer issues and complaints relating to the conduct or action by licensed health care professionals to their appropriate licensing boards" and in clause (viii) of sec.137.34(a)(1)(B) "ensure that issues and complaints relating to the conduct or actions by licensed health care professional(s) are referred and reported to the appropriate licensing board, and that such review and action taken is documented." COMMENT: Concerning sec.137.2 relating to definitions, sec.137.40(b)(1) relating to risk assessments, and sec.137.46(b) relating to physician consultant procedures, a commenter asked for clarification for the definitions of "physician" and "physician consultant" when used in the language in proposed sec.137.40(b)(1) (adopted (c)(1)) and sec.137.46(b). The commenter was not clear as to whether or not the physician consultant had to be a Texas licensed physician. RESPONSE: The department agrees that the definitions and language need clarification to reflect the department's requirement that the physician consultant be a Texas licensed physician. In sec.137.46(b), the department replaced the word "should" with the word "shall" to say "...shall be a Texas licensed physician ..." to be consistent with the definition of "physician." The definition of "physician consultant" has been clarified to read "A physician who is currently licensed under the Medical Practice Act, Texas Civil Statutes, Article 4495b, to practice medicine and who consults with the center." COMMENT: Concerning sec.137.2 relating to definitions, several commenters suggested striking the definition of "midwife" because the terms "documented midwife" and "certified nurse-midwife" are already defined. RESPONSE: The department understands the commenters concern, but believes that the commenters concern has been clarified by changing the term "midwife" to "birth attendant" where applicable. However, the term "birth attendant" includes a physician, so in areas of the rules that relate only to certified nurse midwives and documented nurse midwives the term "midwife" is used, therefore the definition of "midwife" still applies. COMMENT: Concerning sec.137.3 relating to fees, a commenter stated "I feel the $1,000 fee is too high, because I perform only a few deliveries every year as do a lot of my friends who are midwives and own birthing centers. We want the department to consider a sliding fee scale for midwives based upon the number of deliveries per year and adjust the fee according." The commenter questioned if it would be possible for her to appeal the fee? In addition, two written comments were received expressing similar concerns. RESPONSE: The department understands the commenter's concern, however the department's costs associated with regulating a birthing center are the same regardless of the number of births performed by a center. The fees have not increased since 1986 when the rules were first adopted, and the department's costs associated with regulating birthing centers have increased substantially since 1986. The Texas Birthing Center Licensing Act, Health and Safety Code, Chapter 244, provides the Board of Health (board) with the authority to establish fees to make the licensing program self-supporting. There are no provisions for appealing fees adopted by the board. The department made no changes as a result of the comment. COMMENT: Concerning sec.137.11(b)(4)(N), the commenter stated that centers should not be required to have fax machines. RESPONSE: The department agrees that a fax machine should not be required and has added the words "if available" after the words "fax number." COMMENT: Concerning sec.137.21(d), a commenter stated that the language was too prescriptive and provided alternate language for the survey process. RESPONSE: The department agrees that the requirements are too prescriptive for birthing centers. The department has revised the language in subsection (d) as suggested to more accurately reflect the survey process for birthing centers. COMMENT: Concerning the sec.137.21(d), a commenter was concerned that there was no provision for revisits to facilities when deficiencies are cited during a survey. RESPONSE: The department refers the commenter to sec.137.21(a), which states that the department may conduct a survey at other times as it considers necessary to ensure compliance with the Act and the rules adopted under the Act. No change was made as a result of the comment. COMMENT: Concerning proposed sec.137.21(d)(4), a commenter was concerned that there was no provision for a surveyor to mail a statement of deficiencies to the facility instead of providing the statement onsite. RESPONSE: The department agrees that a provision for mailing the statement of deficiencies should be included in the rules and has added language in sec.137.21(d)(8)(a) to allow a statement of deficiencies to be mailed or faxed to the center within 10 days after the exit conference. COMMENT: Concerning proposed sec.137.21(d)(6), a commenter stated that there was no time limit set for a center to correct a deficiency. RESPONSE: The department responded that the time limit to correct a deficiency is at the discretion of the department. However, as stated in sec.137.21(d)(8)(D), a center must correct a deficiency within the time documented on the plan of correction form or within 60 days of the date of expiration of the license whichever comes first. COMMENT: Concerning sec.137.34(a)(1)(A), several commenters stated that the qualifications of the administrator were too strict and could prevent some birth attendants from meeting the stated standard. RESPONSE: The department agrees that the qualifications for the administrator need to be clarified to allow birth attendants to qualify as a center's administrator and has added language to clarify that a birth attendant may be an administrator of a center. The department also added language to sec.137.34(a), which allows one person to act in the capacity of the administrator, the clinical director, and the birth attendant provided that person meets all the qualifications and is capable of performing all of the duties specifically stated for each position. In addition, in sec.137.34(a)(1)(A)(i), the qualifications for the administrator have been modified to require that if the administrator does not meet the qualifications of a birth attendant, the administrator must have six months training or experience in business administration or have at least six months full-time supervisory or administrative experience in a health care or a health related facility. COMMENT: Concerning sec.134.34(a)(1)(A)(i) and (ii), a commenter considered the language unfair, if not illegal, relating to limiting the qualification for the administrator of a center to a person who has not been employed in the last year as an administrator with another center or health related facility at the time the center or facility was cited for violations of a licensing law or rule which resulted in enforcement action taken against the center or health related facility. The commenter asked "What if the violation was secondary to a certified nurse midwife or documented midwife who wasn't following the protocols set by the administrator?" RESPONSE: The department understands the commenter's concerns and agrees that clarification is needed and has added the following language in sec.137.34(a)(1)(A)(ii) to clarify the term "enforcement action": "For purposes of this clause only, the term "enforcement action" means license revocation, suspension, emergency suspension, or denial of a license or injunction action but does not include administrative or civil penalties. If the department prevails in one enforcement action (e.g. injunctive action) against the center but also proceeds with another enforcement action (e.g. revocation) based on some or all of the same violations, but the department does not prevail in the second action (e.g., the center prevails), the prohibition in this clause does not apply." COMMENT: Concerning sec.137.34, a commenter suggested that the entire section be deleted because the administrator, clinical director and other staff members are defined in the definitions. RESPONSE: The department disagrees, as sec.137.34 contains the qualifications and duties of staff which the department is legislatively mandated to do by the Act. A definition section does not and may not contain required regulatory language. COMMENT: Concerning sec.137.34(a)(1), (2) and (3), a commenter stated that if the administrator, clinical director, or the owner is a documented midwife, the rules as written could be interpreted to mean that a documented midwife would be allowed to supervise a certified nurse midwife or a physician. RESPONSE: The department agrees that the language needs clarification. Language has been added in sec.137.34(a) to address that in the event the center's birth attendants include a documented midwife, a certified nurse midwife, or a physician, the certified nurse midwife or the physician shall be the clinical director. COMMENT: Concerning sec.137.35, financial solvency, a commenter thought the section was extremely restrictive and that any birth center that is not paying employees will not be able to retain these employees and would be subject to penalty under other laws. The commenter suggested that the section be deleted in its entirety. RESPONSE: The department agrees and has withdrawn the section; however the language "A center shall have the financial ability to carry out its functions under the Act and this chapter." has been retained and moved to sec.137.4(j) relating to general provisions for licensure. COMMENT: Concerning sec.137.37, a commenter requested that the rules relating to infection control practices be expanded to clarify standards relating to universal precautions, sterilization practices, and training or education. The commenter indicated that the rules as proposed were very vague and left interpretation of infection control practices wide open. RESPONSE: The department agrees and has revised the proposed language and added new language regarding infection control standards to more appropriately describe what is expected of a birthing center. COMMENT: Concerning sec.137.39, a commenter asked if student midwives and student health care professionals would be allowed to obtain clinical experience at a birthing center. RESPONSE: The department agrees that student midwives and student health care professionals should be able to gain clinical experience in a birthing center and has added language as new subsections (g) and (h) in sec.137.39 which sets out the criteria for student midwives and student health care professionals working in a center. COMMENT: Concerning sec.137.40, a commenter asked if the risk assessment involves some assessments that the nurses will think is only in their purview. RESPONSE: The department understands the commenters concern, however the performance of risk assessment is determined by each birthing center with concurrence the minimum requirements set out in the rules. COMMENT: Concerning sec.137.41, a commenter asked if a center is required to have written policies and procedures in place to cover the provision of emergency services. RESPONSE: The department responds that a facility must adopt, implement, and enforce written policies to provide emergency services. These policies shall include the use of emergency equipment and emergency medications. The department has added clarifying language. COMMENT: Concerning sec.137.41, emergency medications and equipment, a commenter asked if documented midwives will be allowed to do more than they should be doing. RESPONSE: The department disagrees that the language is unclear and has not made any changes as a result of the comment. Documented midwives are expected to follow the rules adopted by the Texas Midwifery Board. Section 137.41 does not conflict with those rules. COMMENT: Concerning sec.137.43, relating to prenatal care, a commenter wanted the word "documented" added before the word "midwives" because the language sites the Texas Midwifery Act. RESPONSE: The department understands the commenters concern; however the intent was to require birthing centers to ensure that its birth attendants comply with accepted standards of practice with regard to prenatal care if provided. The department has clarified the language to reflect this intent. The department has also changed language all throughout the rules where the proposed language pertained specifically to documented midwives to state that birth attendants shall provide services within their respective scope of practice and within the limitations of these rules. COMMENT: Concerning sec.137.48(d), a commenter requested that the term "adult" be defined. RESPONSE: The department disagrees that the term "adult" needs to be defined as this is defined by other state law. COMMENT: Concerning sec.137.48(e), a commenter wanted the language changed to "A birth attendant shall be available within ten minutes whenever a client is in the center." RESPONSE: The department disagrees, because the suggested language is too restrictive. No changes were made as a result of the comment. COMMENT: Concerning sec.137.51, several commenters stated that in many birth centers run by physicians and nurse-midwives the mothers and babies receive well-woman and well-baby care for longer than the six-week restriction stated in the rules, and requested that the restriction be removed. RESPONSE: The department agrees and has removed the six-week restriction as this restriction applies only to the practice of documented midwives. The department has added language to clarify that follow-up care shall be in accordance with accepted standards of practice. COMMENT: Concerning sec.137.52, relating to quality assurance, a commenter requested clarification of the intent of this section. RESPONSE: The department agrees and has expanded this section to include a mechanism to address quality issues and corrective action plans as necessary. COMMENT: Concerning sec.137.54, a commenter asked if the reporting requirements included a stillborn. RESPONSE: The department responded that the rules do include reporting a stillborn and has added clarifying language. COMMENT: Concerning sec.137.55, several comments were received requesting clarification of the requirement that birthing centers comply with various practice laws. RESPONSE: The department agrees that clarification is needed and has changed the language throughout sec.137.55 to state a center utilizing the services of certain licensed professionals shall ensure that these persons comply with their respective licensing law while functioning in his or her capacity at or for the center. Other language has been clarified to state that if the center provides pharmacy services it shall comply with the Texas Pharmacy Act. COMMENT: Concerning proposed sec.137.55(h) (now sec.137.55(f)), which requires a birthing center ensure that its physicians comply with the Medical Practice Act, Texas Civil Statutes, Article 4495b, a commenter asked if there was a way to refer a patient to a physician in Mexico for a urinary infection or any kind of infection, because financially it is less expensive in Mexico, most of her patients can't afford Texas physicians. The commenter asked if the rules allow midwives to accept documentation from physicians in foreign countries such as Mexico and requested that the issue be addressed in the rules. RESPONSE: The department responded that sec.137.55(h) does not address patient referrals; it requires birthing centers in which physicians provide service to be sure that these physicians are licensed under the Medical Practice Act, Texas Civil Statutes, Article 4495b. The department has clarified language in sec.137.40, to require a birthing center to refer or transfer a woman to a hospital or physician consultant at any time a client's condition deviates from a low-risk pregnancy. The definition of "physician consultant" is "a physician who is currently licensed under the Medical Practice Act, Texas Civil Statutes, Article 4495-1, to practice medicine"; this means that a birthing center must refer a client who has an infection to a Texas licensed physician. However, this does not limit a women's right to choose whether or not to go to that physician or to see a physician in Mexico for treatment of her infection. If the woman's risk condition is upgraded to low risk, she may be readmitted to the birthing center for services. The birthing center may accept documentation of services from a physician licensed to practice medicine in another state or foreign country such as Mexico, provided the documentation is reviewed by a licensed health care professional within their scope of practice. The State of Texas does not have the authority to monitor the quality of services provided by physicians in Mexico or any other foreign countries. For this reason the department requires referral to a Texas licensed physician. The department's goal is to promote quality health care for women and to ensure that a woman receives the best possible quality of care for herself and her child when choosing to deliver in a Texas licensed birthing center. COMMENT: Concerning sec.137.55, relating to birthing center physicians and laboratory services, several commenters asked the following questions: (1) "Are test results from a physician in Mexico acceptable for documentation since physicians in Mexico are not required to comply with the Medical Practice Act, Texas Civil Statutes, Article 4495b or the Clinical Laboratory Improvement Amendments of 1988, 42 United States Code, sec.263a (CLIA)?" (2) "Are specimens that are drawn by the midwives in their birthing centers, using certain types of laboratory procedures (cord blood, syphilis tests, etc.), regulated by the Federal requirements under Clinical Laboratory Improvement Act (CLIA), or can these laboratory procedures be exempt from CLIA regulation?" (3) "Can the rules state whether or not a birthing center has to comply with CLIA requirements if they draw these types of specimens?" RESPONSE: The department will continue to allow birthing centers to accept documentation from foreign countries, such as Mexico, with acceptance and concurrence of such documentation by a licensed health care professional within their scope of practice. The department has added language to clarify this intent as new subsection (f) in sec.137.39 as follows: "A center that provides care or services to a client based upon laboratory, radiological or ultrasonography reports or medical records from another state or country, shall have these reports and records reviewed by a licensed health care professional within his or her scope of practice. The clinical record shall contain evidence of the licensed health care professional's review of these reports and records and of any recommendations." In addition, to further clarify this intent, language was added in sec.137.55(c) as follows: " If a center accepts laboratory test results from another state or foreign country, such as Mexico, the laboratory documents must be reviewed and approved by a licensed health care professional within his or her scope of practice." A birthing center which allows its birth attendants to draw blood for testing is required to comply with CLIA regulations as stated in sec.137.55(c). There are no waivers or exemptions for the procedures described by the commenter. COMMENT: Concerning sec.137.55(c), which states the requirement for laboratory results to be CLIA approved, a commenter stated that currently department surveyors honor lab results from Mexico on clients of birthing centers, and further questioned if this practice will be discontinued when the new rules are adopted? RESPONSE: As previously stated, it is the department's main objective to ensure that birthing centers provide their clients with the best possible quality of care. The rules have been strengthened to provide the department with the means to regulate the quality of care provided by Texas licensed birthing centers. Language has been added to allow centers to accept laboratory test results from another state or foreign country such as Mexico, provided the laboratory documents have been reviewed and approved by a licensed health care professional within their scope of practice. Department staff made the following changes. In sec.137.2, the department made changes to proposed definitions of the following words and terms: affiliate, birth attendant, birthing center and center, health care facility, hospital, low-risk, nosocomial infection, minimally qualified person, physician assistant, physician consultant, and referral hospital. Most of the changes made to the proposed definitions were for clarification purposes. Changes other than for clarification purposes include the following changes. The definition of "affiliate" reduced the percentage of direct ownership for a corporation to be at least 5% instead of 10%. The definition for "health care facility" was changed to include the language "or home and community support services agency." The definition of "hospital" was clarified to include the following language "or, if exempt from licensure, certified by the United States Department of Health and Human Services as in compliance with conditions of participation for hospitals in Title XVIII, Social Security Act (42 United States Code, sec.1395 et sq.)." The definition for "low- risk" was modified to include the word "pregnancy" and the definition for "normal uncomplicated pregnancy" was deleted because the term was changed to "low-risk pregnancy" throughout the rules. The definition for "physician consultant" was clarified to require the physician consultant to be a physician who is currently licensed under the Medical Practice Act. In sec.137.2, the department added several new definitions to provide clarification for new language added in the final rules as a result of public comment. New definitions are included for the following words: critical item, decontamination, disinfection, licensed health care professional, non-critical items, plan of correction, quality, quality assurance, quality improvement, semi-critical items, standards, sterile field, and sterilization. In sec.137.3(a)(1)(A), concerning the initial licensing fee, the effective date of the fee increase was changed from "January 1, 1998" to "March 1, 1998" for applicants for an initial license. In sec.137.3(a)(2), concerning annual renewal license, the effective date of the fee increase for renewal of a license was changed from "January 1, 1999 to March 1, 1999." Also in sec.137.3(a)(1)(A) the words "a center operating" was changed to "an application submitted" to clarify the intended meaning. In sec.137.4(d), concerning general provisions for licensure, the words "in labor" replaced the words "or initiate services" to clarify that a center may not admit a client who is in labor until it has received an initial license. In sec.137.11(b)(4)(K), the names and addresses of minimally qualified persons are required to be submitted with the application for licensure. In sec.137.11(f)(1), the sentence "The administrator or birth attendant shall attend the presurvey conference" was deleted because it was too prescriptive. The center is responsible for determining who is best qualified to attend the presurvey conference. In sec.137.11(f)(2)(B)(i), subclause (II) was deleted because it was not applicable to birthing centers. In sec.137.11(f)(3), concerning the effective period of an initial license, language was added to clarify the expiration date of an initial license. In sec.137.11(g)(2) and (g)(3)(C), concerning procedures for renewing a license, the requirement that a self-survey report be completed as part of the renewal process was determined to be unnecessary because a center is now required to have an on-going quality assurance process which includes a self evaluation process. In sec.137.11(g)(5) (proposed as sec.137.11(g)(6)), the date an annual license expires was included to provide clarification. In sec.137.11 (i)(6), concerning general requirements for renewal of an annual license, language was added to require a licensee, who decides not to renew its license, to cease providing services and return the original license certificate to the department. In sec.137.21(b)(3), the sentence "If the administrator or his or her designee is not present at the surveyor's arrival, the survey will not be conducted" was deleted. It was determined that because of the travel costs involved, a department representative should be able to conduct the on-site survey instead of having to reschedule at an additional cost to the department. In accordance with this section of the rules, the center is required to have an administrative designee available in the absence of the administrator. The department representative will cooperate with the center's staff in ensuring that the administrator is informed of its presence for the on-site visit. In sec.137.21(d), concerning survey procedures, language was extensively clarified to reflect current survey practices. In sec.137.22(a)(5)(B), concerning license denial, suspension, or revocation, several offenses (misdemeanors and felonies) were added which may effect licensure, because the department determined that these offenses directly relate to the ability of the licensee to operate a center. In sec.137.22(b), concerning notification of proposed denial, suspension, or revocation of a license, procedures were added for when a notice is returned or undeliverable. If a notice is returned or undeliverable, the department may publish a notice in the newspaper. In sec.137.22(e), concerning the effective time of a suspension, the following language was added as paragraph (3) in the final rules "If suspension is for more than one year, the suspended license holder may apply to the department for cancellation of the suspension only after one year following the initial date of the suspension." In sec.137.23(e), concerning notification of a complaint investigation, the department added language to state that the department is not required to give notification prior to the investigation. In sec.137.34(a)(1)(B), language was added to the duties of the administrator requiring the administrator to ensure all billings or insurance claims (e.g. Medicaid) submitted are accurate as follows: "(vii) implement an effective budgeting and accounting system which must include an auditing system for monitoring state or federal funds. The administrator shall ensure all billings or insurance claims (e.g. Medicaid) submitted are accurate." to address the requirement for an auditing system for monitoring state or federal funds. In sec.137.34(a)(1)(B), the following language was added as clauses (viii) and (ix) to require the administrator to "ensure that issues and complaints relating to the conduct or actions by licensed health care professional(s) are referred and reported to the appropriate licensing board, and that such review and action taken is documented; and administratively conduct or supervise the resolution(s) of compliant(s) received from clients in the delivery of their care or services received at the center." In sec.137.38(1), concerning disposal of placentas and all biomedical waste, the language was changed to require compliance with department rules at 25 TAC, sec.sec.1.131 - 1.137 relating to disposal of special waste. In sec.137.38(3), concerning the release of the placenta to the family at the time of discharge, language was added to clarify that release of the placenta included release to the client. In sec.137.39, concerning general requirements for the provision and coordination of treatment and services, language was added as new subsection (e) which requires a center to ensure that its licensed health care professional practice within the scope of their practice and within the constraints of applicable state laws and regulations governing their practice, and that they must follow the facility's written policies and procedures. In sec.137.40, concerning risk assessments, the language was modified to clarify that the risk assessment system must be written in compliance with this section, conform to accepted standards of practice, and be approved by the center's clinical director; and that the system must be applied to clients prior to admission and throughout the pregnancy for continuation of services and during the postpartum period. The language relating to referral and transfer of a client when her condition deviates from a low-risk pregnancy has been clarified. Language has been added to require that the transfer or referral of a client be documented in the clinical record. In sec.137.52(a), language was added to require a center to adopt, implement, and enforce a written quality assurance (QA) program. Language was added to require a center's quality assurance program to address issues of unprofessional conduct by any member of the center's staff and/or staff by contract; the integrity of surgical instruments, medical equipment, and patient supplies; the services performed in the facility as they relate to appropriateness of diagnosis and treatment; and medication therapy practices. Language was added to require the center to identify and address any quality issues and implement corrective action plans as necessary, and to require the center to take and document remedial action to address deficiencies found through activities of the QA program. In sec.137.53, language was added to clarify that "At the time of an on-site survey, all clinical records must be readily retrievable for review within two hours of the request." Also language was added to state that the clinical record must contain documentation that a birth certificate was filed, or if applicable, a death certificate was filed. In sec.137.54, language was added to require an administrator or birth attendant to file a death certificate in the event of the death of a client, an infant, or a stillbirth. The department made several other changes for the purpose of clarification. The following associations or entities provided comments on the rules: Materidad Cristo Rey, Mission, Texas; Santa Maria Birth Center, Brownsville, Texas; Holy Family Birth Services, Weslaco, Texas; The Birth Center at Copperas Cove, Copperas Cove, Texas; the legislative liaison for the Consortium of Texas Certified Nurse-Midwives, Austin, Texas; and several individuals. The commenters were generally in favor of the rules; however, they expressed concerns and asked questions as described in the summary of comments. 25 TAC sec.sec.137.1-137.11 The repeal is adopted under the Texas Birthing Center Licensing Act, Health and Safety Code, Chapter 244, which provides the Board of Health (board) with the authority to adopt rules governing the licensing and regulation of birthing centers; and sec.12.001, which provides the board with the authority to adopt rules to implement every duty imposed by law on the board, the department, and the commissioner of health. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800827 Susan K. Steeg General Counsel Texas Department of Health Effective date: March 1, 1998 Proposal publication date: July 22, 1997 For further information, please call: (512) 458-7236 SUBCHAPTER A. General Provisions 25 TAC sec.sec.137.1-137.4 The new sections are adopted under the Texas Birthing Center Licensing Act, Health and Safety Code, Chapter 244, which provides the Board of Health (board) with the authority to adopt rules governing the licensing and regulation of birthing centers; and sec.12.001, which provides the board with the authority to adopt rules to implement every duty imposed by law on the board, the department, and the commissioner of health. sec.137.1. Purpose and Scope. (a) The purpose of this chapter is to implement the Texas Birthing Center Licensing Act, Health and Safety Code, Chapter 244, which requires birthing centers (centers) to be licensed by the Texas Department of Health (department) and requires the department to adopt rules governing the licensing and regulation of centers. (b) This chapter establishes general provisions, licensing procedures, enforcement procedures, and operational and clinical standards for the provision and coordination of treatment and services. (c) This chapter applies to all centers as defined in sec.137.2 of this title (relating to Definitions). Such centers must be licensed in accordance with the provisions of this chapter. A person may not engage in the business of providing center services, or represent to the public that the person is a provider of such services for pay or other consideration without a license. sec.137.2. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Act - Texas Birthing Center Licensing Act, Health and Safety Code, Chapter 244, relating to the licensure and regulation of centers. Acute postpartum period - A minimum of two hours following the delivery of the placenta and until the client is clinically stable. Administrator - A person who is delegated the responsibility for the implementation and proper application of policies, programs, and services established for the center. Affiliate - With respect to an applicant or owner which is: (A) a corporation - includes each officer, director, stockholder with a direct ownership of at least 5.0%, subsidiary, and parent company; (B) a limited liability company - includes each officer, member, and parent company; (C) an individual - includes: (i) the individual's spouse; (ii) each partnership and each partner thereof of which the individual or any affiliate of the individual is a partner; and (iii) each corporation in which the individual is an officer, director, or stockholder with a direct ownership of at least 5.0%; (D) a partnership - includes each partner and any parent company; and (E) a group of co-owners under any other business arrangement - includes each officer, director, or the equivalent under the specific business arrangement and each parent company. Annual license - A license that is issued annually to a center, other than an initial license. Applicant - The owner of a center which is applying for a license under the Act. This is the person in whose name the license will be issued. Birth attendant - A physician, certified nurse-midwife (CNM), or a documented midwife. Board of Health - The Texas Board of Health. Center - A facility, place, or institution where a woman is scheduled to give birth following a normal, uncomplicated (low-risk) pregnancy. This term does not include a hospital, ambulatory surgical center, a nursing home, or the residence of the woman giving birth. Certified nurse-midwife (CNM) - A person who is: (A) a registered nurse who is currently licensed under the Nursing Practice Act, Texas Civil Statutes, Article 4513 et. seq.; (B) recognized as an advanced practice nurse by the Board of Nurse Examiners for the State of Texas; and (C) certified by the American College of Nurse-Midwives (ACNM) or ACNM Accreditation Council. Client - A woman who is scheduled to give birth at a center and the infant of that birth. Clinical director - A person who is responsible for advising and consulting with the staff of a center on all matters relating to the clinical management of all clients. Critical item - All surgical instruments and objects that are introduced directly into the bloodstream or into other normally sterile areas of the body. Decontamination - The physical and chemical process that renders an inanimate object safe for further handling. Department - The Texas Department of Health. Director - The director of the Health Facility Licensing Division of the Texas Department of Health or his or her designee. Disinfection - The destruction or removal of vegetative bacteria, fungi, and most viruses but not necessarily spores; the process does not remove all organisms but reduces them to a level that is not harmful to health. There are three levels of disinfection: (A) high level disinfection - kills all organisms, except high levels of bacterial spores, and is effected with a chemical germicide cleared for marketing as a sterilant by the Food and Drug Administration; (B) intermediate-level disinfection - kills mycobacteria, most viruses, and bacteria with a chemical germicide registered as a "tuberculocide" by the Environmental Protection Agency (EPA); and (C) low-level disinfection - kills some virus and bacteria with a chemical germicide registered as a hospital disinfectant by the EPA. Documented midwife - A person who practices midwifery and is documented under the Texas Midwifery Act, Texas Civil Statutes, Article 4512i. Health care facility - Any type of facility or home and community support services agency licensed (or equivalent) to provide health care in any state or is certified for Medicare (Title XVIII) and Medicaid (Title XIX) participation in any state. Hospital - A facility that is licensed under the Texas Hospital Licensing Law, Health and Safety Code, Chapter 241 or, if exempt from licensure, certified by the United States Department of Health and Human Services as in compliance with conditions of participation for hospitals in Title XVIII, Social Security Act (42 United States Code, sec.1395 et seq.). Initial license - The first license that is issued to an applicant indicating that the center meets all requirements of this chapter for a license. Licensed health care professional - An individual licensed in the state of Texas to provide specific health care services within a defined scope of practice by their licensing rules, or Act. Licensed vocational nurse (LVN) - A person who is currently licensed under Texas Civil Statutes, Article 4528c, as a licensed vocational nurse. Low-risk pregnancy - A pregnancy that is determined by history, application of a risk criteria, and prenatal care that broadly predicts an outcome of a normal, uncomplicated pregnancy. Midwife - A certified nurse midwife (CNM) or a documented midwife. Minimally qualified person - A registered nurse (RN), licensed vocational nurse (LVN), physician assistant (PA), or adult unlicensed staff person who is capable of recognizing complications and who can care for the mother and infant by performing the minimum duties set out in sec.137.48(d) of this title (relating to Labor and Birth Procedures). Non-critical items - Items that come in contact with intact skin. Nosocomial infection - An infection acquired at or during an admission to a center; there must be no evidence that the infection was present or incubating at the time of admission to the center. Notarized copy - A sworn affidavit stating that attached copies are true and correct copies of the original documents. Person - An individual, firm, partnership, corporation, or association. Physician - A person who is currently licensed under the Medical Practice Act, Texas Civil Statutes, Article 4495b,to practice medicine. Physician assistant (PA) - A person who is currently licensed under the Physician Assistant Licensing Act, Texas Civil Statutes, Article 4495-1, as a physician assistant. Physician consultant - A physician who is currently licensed under the Medical Practice Act, Texas Civil Statutes, Article 4495b, to practice medicine and who consults with a center. Plan of correction - A written strategy for correcting a licensing violation. The plan of correction shall be developed by the facility and shall address the systems operations of the facility as the systems operations apply to the deficiency. Presurvey conference - A conference held with department staff and the applicant or his or her representatives to review licensure standards and survey documents and provide consultation prior to the on-site licensure survey. Quality - The degree to which care meets or exceeds the expectations or standards set by the client. Quality assurance - An ongoing, objective, and systematic process of monitoring, evaluating, and improving the quality, appropriateness, and effectiveness of care. Quality improvement - An organized, structured process that selectively identifies improvement projects to achieve improvements in products or services. Referral hospital - A hospital that a center has identified as capable of providing care and services to high-risk mothers or infants who require the services of a physician. Registered nurse (RN) - A person who is currently licensed under the Nurse Practice Act, Texas Civil Statutes, Article 4513 et. seq. as a registered nurse. Risk-assessment - A process by which application of historical, physical, and laboratory data is used for the prediction of pregnancy outcome. Semi-critical items - Items that come in contact with nonintact skin or mucous membranes. Semi-critical items may include respiratory therapy equipment and thermometers. Standards - Minimum requirements under the Act and this chapter. Sterile field - The operative area of the body and anything that directly contacts this area. Sterilization - The use of a physical or chemical procedure to destroy all microbial life, including bacterial endospores. Survey - A survey or investigation conducted by a representative of the department to determine if a licensee is in compliance with the statute and this chapter. A survey may be conducted onsite, by mail, by telephone, or by electronic communication methods. Uncomplicated vaginal delivery - Spontaneous labor and delivery. sec.137.3. Licensing Fees. (a) The schedule of fees for a license is as follows: (1) initial license fee - (A) for an application submitted prior to March 1, 1998, the fee is $300; (B) for a center beginning operation or for which there is a change of ownership on or after March 1, 1998, the fee is $1,000; and (2) annual renewal license fee - (A) if renewing between March 1, 1998, - February 28, 1999, the fee is $300; or (B) if renewing on or after March 1, 1999, the fee is $1,000. (b) The department will not consider an application as officially submitted until the applicant pays the licensing fee. The fee must accompany the application form. (c) A license fee paid to the department is not refundable. (d) Any remittance submitted to the department in payment of a required license fee must be in the form of a personal check, certified check, or money order made payable to the Texas Department of Health. sec.137.4. General Provisions for Licensure. (a) All first-time applications for a license are applications for an initial license. (b) If the applicant for a license is an individual, the applicant must be at least 18 years of age. (c) A separate license is required for each place of business. (d) A center may not admit a client in labor until it has received an initial license. (e) The licensed location must be in Texas. (f) The owner of the center is responsible for ensuring the center's compliance with the Act and this chapter. (g) A license must be renewed annually. (h) The license shall be displayed in a conspicuous place in the center. (i) The license may not be transferred or assigned from one person to another person. (j) A center shall have the financial ability to carry out its functions under the Act and this chapter. 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. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800828 Susan K. Steeg General Counsel Texas Department of Health Effective date: March 1, 1998 Proposal publication date: July 22, 1997 For further information, please call: (512) 458-7236 SUBCHAPTER B. Licensing Procedures 25 TAC sec.sec.137.11-137.13 The new sections are adopted under the Texas Birthing Center Licensing Act, Health and Safety Code, Chapter 244, which provides the Board of Health (board) with the authority to adopt rules governing the licensing and regulation of birthing centers; and sec.12.001, which provides the board with the authority to adopt rules to implement every duty imposed by law on the board, the department, and the commissioner of health. sec.137.11. Application Procedures and Issuance of Licenses. (a) Request for application. Upon written request for a license, the Texas Department of Health (department) will furnish a person with an application packet and a copy of this chapter. (b) The application. The applicant shall submit the information listed in paragraph (4) of this subsection to the department within six months from the date the department mails the application packet to the applicant. (1) If the department does not receive the information listed in paragraph (4) of this subsection within six months from the mailing date, the applicant must request a new initial application packet. (2) An applicant shall not misstate a material fact on any documents required to be submitted under this subsection. (3) The application form must be accurate and complete and must contain original signatures. The nonrefundable license fee must be submitted with the application. (4) The following documents must be submitted with the original application form and shall be originals or notarized copies: (A) information on the applicant including name, street address, mailing address, social security number, date of birth, and driver's license number; (B) the name, mailing address, and street address of the center. The address provided on the application must be the address from which the center will be operating and providing services; (C) a list of names and business addresses of all persons who own any percentage interest in the applicant including: (i) each limited partner and general partner if the applicant is a partnership; and (ii) each shareholder, member, director, and officer if the applicant is a corporation, limited liability company or other business entity; (D) a list of any businesses with which the applicant subcontracts and in which the persons listed under subparagraph (C) of this paragraph hold any percentage of the ownership; (E) if the applicant has held or holds a center license or has been or is an affiliate of another licensed center, the relationship, including the name and current or last address of the other center and the date such relationship commenced and, if applicable, the date it was terminated; (F) if the center is operated by or proposed to be operated under a management contract, the names and addresses of any person and organization having an ownership interest of any percentage in the management company; (G) a written plan for the orderly transfer of care of the applicant's clients and clinical records if the applicant is unable to maintain services under the license; (H) a notarized statement attesting that the applicant is capable of meeting the requirements of this chapter; (I) if an applicant is a corporation, a current letter from the state comptroller's office stating the corporation is in good standing or a notarized certification that the tax owed to the state under the Tax Code, Chapter 171, is not delinquent or that the corporation is exempt from the payment of the tax and is not subject to the Tax Code, Chapter 171; (J) the organizational structure of the staffing for the center; (K) the names and addresses of the physicians, certified nurse-midwives, documented midwives and minimally qualified persons who will provide services at the center; (L) the following data concerning the applicant, the applicant's affiliates, and the managers of the applicant: (i) denial, suspension, or revocation of a center license, a license for any health care facility in any state, or documentation as a midwife; or any other enforcement action, such as (but not limited to) court civil or criminal action; (ii) denial, suspension, or revocation of or other enforcement action against a center license, a license for any health care facility in any state, or documentation as a midwife which is or was proposed by the licensing agency and the status of the proposal; (iii) surrendering a license before expiration of the license or allowing a license to expire in lieu of the department proceeding with enforcement action; (iv) federal or state (any state) criminal felony arrests or convictions; (v) federal or state Medicaid or Medicare sanctions or penalties relating to the operation of a health care facility; (vi) operation of a health care facility that has been decertified in any state under Medicare or Medicaid; or (vii) debarment, exclusion, or contract cancellation in any state from Medicare or Medicaid; (M) for the two-year period preceding the application date, the following data concerning the applicant, the applicant's affiliates, and the managers of the applicant: (i) federal or state (any state) criminal misdemeanor arrests or convictions; (ii) federal or state (any state) tax liens; (iii) unsatisfied final judgement(s); (iv) eviction involving any property or space used as a center or health care facility in any state; (v) injunctive orders from any court; or (vi) unresolved final state or federal Medicare or Medicaid audit exceptions; and (N) the telephone number, and fax number (if available) of the center and the telephone number where the administrator can usually be reached when the center is closed. (c) Applicant copy. The applicant shall retain a copy of all documentation that is submitted to the department. (d) Application processing. Upon the department's receipt of the application form, the required information described in subsection (b)(4) of this section, and the initial license fee from an applicant, the department shall review the material to determine whether it is complete and correct. (1) The time periods for reviewing the material shall be in accordance with sec.137.13 of this title (relating to Time Periods for Processing and Issuing a License). (2) If a center receives a notice from the department that some or all of the information required under subsection (b)(4) of this section is deficient, the center shall submit the required information no later than six months from the date of the notice. (A) A center which fails to submit the required information within six months from the notice date is considered to have withdrawn its application for an initial license. The license fee will not be refunded. (B) A center which has withdrawn its application must reapply for a license in accordance with this section, if it wishes to continue the application process. A new license fee is required. (e) Withdrawal of application process. If an applicant decides at any time not to continue the application process for an initial license, the application will be withdrawn upon written request from the applicant. (f) Issuance of an initial license and renewal procedures. (1) Presurvey conference. Once the department has determined that the application form, the information required to accompany the application form, and the license fee are complete and correct, a representative from the department shall schedule a presurvey conference with the applicant in order to inform the applicant of the standards for the operation of the center. The presurvey conference may be waived by the department. (2) Survey recommendation. (A) The survey office shall verify compliance with the applicable provisions of the Act and this chapter and recommend that the center be issued an initial license or that the application be denied pursuant to sec.137.22 of this title (relating to License Denial, Suspension, or Revocation). (B) Upon recommendation by the survey office: (i) the department shall issue an initial license to an applicant that has been found to be in compliance with the provisions of the Act and this chapter; or (ii) the department shall deny the application if the center has been found to be out of compliance with the provisions of the Act and this chapter. The procedure for denial of a license shall be in accordance with sec.137.22 of this title. (3) Effective period of initial license. The initial license is valid for 12 months or upon issuance or denial of an annual license, whichever is sooner. The initial license shall expire: (A) on the last day of the preceding month of the next year if issued on the first day of a month; or (B) on the last day of the month of issuance of the next year if issued on the second or any subsequent day of a month. (4) General requirements during the initial license period. (A) A center shall comply with the provisions of the Act and this chapter during the initial license period. (B) Upon admitting the first client, the center shall inform the director, Health Facility Licensing Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, of the admission and the name of the client. (C) If an applicant decides not to continue the application process, the application will be withdrawn upon written request. If an initial license has been issued, the applicant shall cease providing services and return the original license certificate to the department with its written request to withdraw. The department shall acknowledge receipt of the request to withdraw. The license fee will not be refunded. (g) Procedures for renewing a license. (1) The department will send notice of expiration to a licensee at least 60 days before the expiration date of a license. If the licensee has not received notice of expiration from the department 45 days prior to the expiration date, it is the duty of the licensee to notify the department and request an application for an annual license. (2) The licensee shall submit to the department postmarked no later than 30 days prior to the expiration date of the license: (A) a complete and correct renewal application form which includes updated disclosure information and ownership and management information as required by subsection (b)(4) of this section; and (B) the renewal license fee. (3) All documents submitted with the renewal application shall be notarized copies or originals. The time periods for processing an application shall be in accordance with sec.137.13 of this title. (4) If timely and sufficient application is made for renewal, the license will not expire until the department issues the license or until the department denies renewal of the license. (5) The department shall issue an annual license to a licensee who meets the minimum standards for a license in accordance with the provisions of the Act and this chapter. The annual license shall expire 12 months from the date of issuance. (h) Failure to timely renew. (1) General. (A) If a licensee fails to timely submit an application and fee in accordance with subsection (g) of this section, the department shall notify the licensee that the center must cease operation on the expiration date of the license. (B) To continue providing services at the center after the expiration of the license, the owner must reapply for a license in accordance with subsection (b) of this section. (2) Active military duty exception. If a licensee fails to timely renew his or her license on or after August 1, 1990, because the licensee is or was on active duty with the armed forces of the United States of America serving outside the State of Texas, the licensee may renew the license pursuant to this paragraph. (A) Renewal of the license may be requested by the licensee, the licensee's spouse, or an individual having power of attorney from the licensee. The renewal form shall include a current address and telephone number for the individual requesting the renewal. (B) Renewal may be requested before or after the expiration of the license. (C) A copy of the official orders or other official military documentation showing that the licensee is or was on active military duty serving outside the State of Texas shall be filed with the department along with the renewal form. (D) A copy of the power of attorney from the licensee shall be filed with the department along with the renewal form if the individual having the power of attorney executes any of the documents required in this section. (E) A licensee renewing under this paragraph shall pay the applicable renewal fee. (F) A licensee is not authorized to operate the center for which the license was obtained after the expiration of the license unless and until the licensee actually renews the license. (G) This paragraph applies to a licensee who is a sole practitioner or a partnership with only individuals as partners where all of the partners were on active duty with the armed forces of the United States serving outside the State of Texas. (i) General requirements for renewal of an annual license. (1) After the issuance of the initial license, a licensee is eligible for subsequent renewal of the license annually if the licensee continues to comply with the provisions of the Act and this chapter and has applied for renewal of the license in accordance with subsection (g) of this section. (2) If a licensee makes a timely application for renewal of a license, and action to revoke, suspend, or deny renewal of the license is pending, the license does not expire but does extend until the application for renewal is granted or denied after the opportunity for a formal hearing. A renewal license will not be issued unless the department has determined the reason for the proposed action no longer exists. (3) Continuing compliance by the center with the provisions of the Act and this chapter is required during the previous 12-month license period in order for the annual license to be renewed. (4) The licensee shall not misstate a material fact on any documents required to be submitted to the department or required to be maintained by the center in accordance with the provisions of the Act and this chapter. (5) During the license period, the center shall provide services to one or more clients and document the provision of services. The center must show proof that services have been provided under the license within the previous 12 months. Such documentation shall be available for review by a department surveyor. (6) If a licensee decides not to continue the application process for the renewal of a license, the application may be withdrawn upon written request. The applicant shall cease providing services and return the original license certificate to the department with its written request to withdraw. The department shall acknowledge receipt of the request to withdraw. The license fee will not be refunded. (j) Denial of an annual license. (1) The department may propose to deny the issuance of an annual license if, based on the survey report, the department determines that the center does not meet or is in violation of any of the provisions of the Act or this chapter. (2) An annual license will be denied if renewal is prohibited by the Texas Education Code, sec.57.491, relating to defaults on guaranteed student loans. (3) The procedure for denial of a license shall be in accordance with sec.137.22 of this title. (k) On-site surveys. On-site surveys of the center shall be performed at a frequency prescribed by and in accordance with sec.137.21 of this title (relating to On-Site Surveys). sec.137.12. Change of Ownership or Services and Closure. (a) The following provisions apply to change of ownership of a center and affect the condition of a license. (1) A license is not transferable or assignable from one person to another person. (2) A license issued by the department may not be materially altered in any way. (3) A change of ownership of a center is effective when the name of the licensed person reflected on the license certificate and original application is changed by the department to reflect the name of the person applying for the change of ownership. (4) A person who desires to receive a license in its name for a center licensed under the name of another person or to change the ownership of any center shall submit a license application and the initial license fee at least 60 calendar days prior to the desired date of the change of ownership. The application shall be in accordance with sec.137.11(b) of this title (relating to Application Procedures and Issuance of Licenses). (5) An application for a change of ownership shall include a notarized affidavit signed by the previous owner acknowledging agreement with the change of ownership. If the applicant is a corporation, the application shall include a copy of the applicant's articles of incorporation. If the applicant is a business entity other than a corporation, the applicant shall include a copy of the sales agreement. (6) The previous owner's license shall be void on the effective date of the change of ownership. (7) This subsection does not apply if a licensee is simply revising its name as allowed by law (i.e., a corporation is amending the articles of incorporation to revise its name). (8) The sale of stock of a corporate licensee does not cause this subsection to apply. (b) The following business changes affect the condition of a license and shall be reported to the department. (1) If a center changes its business name, business address, telephone number of the center, administrator's telephone number, or fax number, the administrator must notify the department in writing within 15 calendar days after the effective date of the change. (2) If a center changes its administrator, the center shall provide the name of the new administrator and effective date to the department in writing no later than 30 calendar days following such change. (c) The licensee shall notify the department in writing within 15 calendar days when a center ceases operation. The licensee shall return the original license certificate to the department with the written notification. sec.137.13. Time Periods for Processing and Issuing a License. (a) General. (1) The date a license application is received is the date the application reaches the Health Facility Licensing Division of the Texas Department of Health (department). (2) An application for an initial license is complete when the department has received, reviewed, and found acceptable the information described in sec.137.11(b)(4) of this title (relating to Application Procedures and Issuance of Licenses). (3) An application for a renewal license is complete when the department has received, reviewed, and found acceptable the information described in sec.137.11(g)(3) of this title. (4) An application for a change of ownership license is complete when the department has received, reviewed, and found acceptable the information described in sec.137.12 of this title (relating to Change of Ownership or Services and Closure). (b) Time periods. An application from a center for an initial license, renewal license, or change of ownership license shall be processed in accordance with the following time periods. (1) The first time period begins on the date the department receives the application and ends on the date the license is issued, or if the application is received incomplete, the period ends on the date the center is issued a written notice that the application is incomplete. The written notice shall describe the specific information that is required before the application is considered complete. The first time period is 45 days. (2) The second time period begins on the date the last item necessary to complete the application is received and ends on the date the license is issued. The second time period is 45 days. (c) Reimbursement of fees. (1) In the event the application is not processed in the time periods stated in subsection (b) of this section, the applicant has the right to request that the department reimburse in full the fee paid in that particular application process. If the department does not agree that the established periods have been violated or finds that good cause existed for exceeding the established periods, the request will be denied. (2) Good cause for exceeding the period established is considered to exist if: (A) the number of applications for licenses to be processed exceeds by 15% or more the number processed in the same calendar quarter the preceding year; (B) another public or private entity utilized in the application process caused the delay; or (C) other conditions existed giving good cause for exceeding the established periods. (d) Appeal. If the request for reimbursement as authorized by subsection (c) of this section is denied, the applicant may then appeal to the commissioner of health for a resolution of the dispute. The applicant shall give written notice to the commissioner requesting reimbursement of the fee paid because the application was not processed within the established time period. The department shall submit a written report of the facts related to the processing of the application and good cause for exceeding the established time periods. The commissioner will make the final decision and provide written notification of the decision to the applicant and the director. (e) Hearings. If a hearing is proposed during the processing of the application, the time periods in sec.1.34 of this title (relating to Time Periods for Conducting Contested Case Hearing) are applicable. 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. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800829 Susan K. Steeg General Counsel Texas Department of Health Effective date: March 1, 1998 Proposal publication date: July 2, 1997 For further information, please call: (512) 458-7236 SUBCHAPTER C. Enforcement 25 TAC sec.sec.137.21-137.23 The new sections are adopted under the Texas Birthing Center Licensing Act, Health and Safety Code, Chapter 244, which provides the Board of Health (board) with the authority to adopt rules governing the licensing and regulation of birthing centers; and sec.12.001, which provides the board with the authority to adopt rules to implement every duty imposed by law on the board, the department, and the commissioner of health. sec.137.21. On-Site Surveys. (a) Requirement for on-site surveys. A representative of the department may enter the premises of a license applicant or license holder at reasonable times to conduct a survey incidental to the issuance of a license, and at other times as it considers necessary to ensure compliance with the Act and the rules adopted under the Act. (b) Initial on-site survey. (1) The department shall conduct the on-site survey within 90 calendar days of the date of issuance of the initial license to determine if the center meets the requirements of the Act and this chapter. (2) The on-site survey shall include a standard-by-standard evaluation. (3) At the time of the initial on-site survey, the center shall assure that the administrator or his or her designee(s) is present during the survey. (4) If at the time of the initial on-site survey, the center has not admitted its first client for antepartum, intrapartum, or postpartum care, the center must notify the Director, Health Facility Licensing Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas, 78756, when the first such admission and care delivery does occur. (A) Within seven calendar days of the first client admission, the center shall submit a copy of the clinical record to the department for review. (B) The department shall review the clinical record(s) to evaluate the center's compliance with the care delivery standards of this chapter. (5) Upon completion of the on-site survey, a department surveyor shall verify a center's compliance with the provisions of the Act and this chapter and recommend to the department: (A) that the center's initial license be continued for the duration of the initial license period; or (B) that the department propose an enforcement action. (c) Subsequent on-site surveys. After the initial on-site survey that is required for an initial license under subsection (b) of this section, an on-site survey shall be performed at least every three years with the following exceptions. (1) If the department has written deficiencies for the center under the following provisions of this chapter, the department shall conduct another on- site survey no later than one year after issuance of the initial license: (A) sec.137.31 of this title (relating to Operational and Clinical Policies); (B) sec.137.32 of this title (relating to Organizational Structure and Delegation of Authority); (C) sec.137.33(4) and (5) of this title (relating to Personnel Policies); (D) sec.137.34 of this title (relating to Qualifications and Duties of Staff); (E) sec.137.36 of this title (relating to Physical and Environmental Requirements for Centers); (F) sec.137.37 of this title (relating to Sanitary Standards and Universal Precautions); (G) sec.137.38 of this title (relating to Disposition of Medical Waste); (H) sec.137.40 of this title (relating to Risk Assessments); (I) sec.137.48 of this title (relating to Labor and Birth Procedures); (J) sec.137.49 of this title (relating to Care of the Infant); and (K) sec.137.55 of this title (relating to Other State and Federal Compliance Requirements). (2) If the department has taken enforcement action against a center and the action allowed the center to remain licensed, the department shall conduct another on-site survey within one year after issuance of the initial license. (3) Any deficiencies cited in paragraph (1) of this subsection after an annual survey will not change the on-site survey from one year to three years until the second annual survey following the survey in which the deficiencies were cited. (4) This subsection does not limit complaint surveys by the department. (d) Survey procedures. (1) Prior to the survey, the department may notify the applicant or licensee, in writing by mail or fax to the mailing address of the center, of the date and time of the survey. The department is not required to notify the applicant or licensee prior to a complaint investigation. (2) The department's surveyor shall hold a conference with the person who is in charge of a center prior to commencing the survey for the purpose of explaining the nature and scope of the survey. The surveyor shall hold an exit conference with the person who is in charge of the center when the survey is completed, and the surveyor shall identify any records that were duplicated. Any original center records that are removed from a center shall be removed only with the consent of the center. (3) Except for a complaint investigation or a follow-up visit, a survey will include a standard-by-standard evaluation. (4) The surveyor shall hold an exit conference and fully inform the person who is in charge of the center of the preliminary findings of the survey and shall give the person a reasonable opportunity to submit additional facts or other information to the surveyor in response to those findings. The response shall be made a part of the survey for all purposes and must be received by the department within five calendar days of receipt of the preliminary findings of the survey by the center. (5) After the survey is completed, the department shall provide the administrator of the center specific and timely written notice of the findings of the survey. (6) If the department determines that the center is in compliance with minimum standards at the time of the on-site inspection, the department will send a license to the center, if applicable. (7) If the surveyor finds there are deficiencies, the department shall provide the center with a statement of the deficiencies; the surveyer's recommendation for further action; or if there are no deficiencies found, a statement indicating this fact. (8) If the surveyor finds there are deficiencies, the center and the department shall comply with the following procedure. (A) The department shall provide the center with a statement of deficiencies onsite at the time of the exit conference or within 10 days of the exit conference. (B) The center administrator or person in charge shall sign the written statement of deficiencies and return it to the department with its plan of correction(s) for each deficiency within 10 days of its receipt of the statement of deficiencies. The signature does not indicate the person's agreement with deficiencies stated on the form. (C) The department shall determine if the written plan of correction is acceptable. If the plan of correction(s) is not acceptable to the department, the department shall notify the center and request that the plan of correction be modified by telephone or resubmitted no later than 10 calendar days. (D) The center shall come into compliance in accordance with the plan of correction or no later than 60 days prior to the expiration of the license, whichever is sooner. (E) Acceptance of a plan of correction by the department does not preclude the department from taking enforcement action as appropriate under sec.137.22 of this title (relating to License Denial, Suspension, or Revocation). (9) The department shall refer issues and complaints relating to the conduct or actions by licensed health care professionals to their appropriate licensing boards. sec.137.22. License Denial, Suspension, or Revocation. (a) The department may deny, suspend, or revoke a license if the licensee or the center: (1) violates a provision of Texas Birthing Center Licensing Act, Health and Safety Code, Chapter 244; (2) fails to meet a requirement of this chapter; (3) fails to comply with an order of the commissioner of health or another enforcement procedure under the Act; (4) discloses any action as described in sec.137.11(b)(4)(L)-(M) of this title (relating to Application Procedures and Issuance of Licenses); or (5) discloses a conviction of a felony or misdemeanor if the crime directly relates to the duties and responsibilities of a center. (A) In determining whether a criminal conviction directly relates, the department shall consider the provisions of Texas Civil Statutes, Article 6252- 13c. (B) The following felonies and misdemeanors directly relate because these criminal offenses indicate an inability or a tendency for the person to be unable to own or operate a center. These offenses include: (i) a misdemeanor violation of the Act; (ii) a conviction relating to deceptive business practices; (iii) a misdemeanor or felony offense involving moral turpitude; (iv) the misdemeanor of practicing any health-related profession without a required license; (v) a conviction under any federal or state law relating to drugs, dangerous drugs, or controlled substances; (vi) an offense under the Texas Penal Code involving a client or staff of a health care facility or a home and community support services agency; (vii) Texas Penal Code, Chapter 19 concerning criminal homicide; (viii) Texas Penal Code, Chapter 20 concerning kidnaping and false imprisonment; (ix) Texas Penal Code, sec.21.11 concerning indecency with a child; (x) Texas Penal Code, sec.22.011 concerning sexual assault; (xi) Texas Penal Code, sec.22.02 concerning aggravated assault; (xii) Texas Penal Code, sec.22.04 concerning injury to a child, elderly individual, or disabled individual; (xiii) Texas Penal Code, sec.22.041 concerning abandoning or endangering child; (xiv) Texas Penal Code, sec.22.08 concerning aiding suicide; (xv) Texas Penal Code, sec.25.031 concerning agreement to abduct from custody; (xvi) Texas Penal Code, sec.25.08 concerning sale or purchase of a child; (xvii) Texas Penal Code, sec.28.02 concerning arson; (xviii) Texas Penal Code, sec.29.02 concerning robbery; (xix) Texas Penal Code, sec.29.03 concerning aggravated robbery; (xx) a misdemeanor or felony offense under the Texas Penal Code, as follows: (I) Title 5, concerning offenses against the person; (II) Title 7, concerning offenses against property; (III) Title 9, concerning offenses against public order and decency; (IV) Title 10, concerning offenses against public health, safety, and morals; (V) Title 4, concerning offenses of attempting or conspiring to commit any of the offenses in subclauses (I)-(IV) of this clause; and (VI) other misdemeanors and felonies which indicate an inability or tendency for the person to be unable to own or operate a center; and (xxi) a federal conviction for obtaining fraudulent citizenship. (C) Upon a licensee's felony conviction, felony probation revocation, revocation of parole, or revocation of mandatory supervision, the license shall be revoked. (b) If the department proposes to deny, suspend, or revoke a license, the department shall notify the center by certified mail, return receipt requested, or personal delivery of the reasons for the proposed action and instructions to request a hearing. If a notice served by mail is returned undeliverable or the department is unable to execute personal delivery of the notice, the department may publish the notice for seven consecutive calendar days in a newspaper of general circulation serving the county in which the center is located based upon the last address provided by the center. (1) The center must request a hearing within 20 calendar days of receipt of the notice or the last day of publication in the newspaper. Receipt of the notice is presumed to occur on the tenth day after the notice is mailed to the last address known to the department unless another date is reflected on a United States Postal Service return receipt. (2) The request for a hearing must be in writing and submitted to the Director, Health Facility Licensing Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756. (3) A hearing shall be conducted pursuant to the Administrative Procedure Act, Texas Government Code, Chapter 2001; and the department's formal hearing procedures in sec.sec.1.21-1.34 of this title (relating to Formal Hearing Procedures). (4) If the licensee does not request a hearing in writing within 20 calendar days of receipt of the notice, the licensee is deemed to have waived the opportunity for a hearing and the proposed action shall be taken. (5) If the licensee fails to appear or be represented at the scheduled hearing, the licensee is deemed to have waived the right to a hearing and the proposed action shall be taken. (c) A person who has had a center license revoked under this section, may not apply for a license under this chapter for one year following the date of revocation. (d) After a survey in which deficiencies were cited by the surveyor, a center may surrender its license before expiration or allow its license to expire in lieu of the department proceeding with enforcement action. A center may surrender its license before the expiration date by returning its original license certificate to the department. If a center surrenders or allows expiration of its license, the center, its owner(s), and its affiliates may not reapply for a license for six months from the date of the surrender or expiration. (e) If the department suspends a license, the suspension shall remain in effect until the department determines that the reason for suspension no longer exists. A department surveyor shall conduct a survey of the center prior to making a determination. (1) During the time of suspension, the suspended license holder shall return the original license certificate to the department. (2) If a suspension overlaps a renewal date, the suspended license holder shall comply with the renewal procedures in this chapter; however, the department may not renew the license until the department determines that the reason for suspension no longer exists. (3) If suspension is for more than one year, the suspended license holder may apply to the department for cancellation of the suspension only after one year following the initial date of the suspension. (f) If the department revokes or does not renew a license, a person may reapply for a license (subject to subsection (c) of this section), by complying with the requirements and procedures in this chapter at the time of reapplication. The department may refuse to issue a license if the reason for revocation or nonrenewal continues to exist. (g) Upon revocation or nonrenewal, a license holder shall return the original license certificate to the department. sec.137.23. Complaints. (a) In accordance with sec.137.42 of this title (relating to Disclosure Requirements), all licensed centers are required to provide a client and her guardian if the client is a minor or if guardianship is required, at the time of the initial visit, with a written statement that complaints relating to the center may be registered with the Director, Health Facility Compliance Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, telephone (800) 228-1570. (b) Complaints may be registered with the department by telephone or in writing at the address listed in subsection (a) of this section. A complainant may provide his or her name, address, and phone number to the department. Anonymous complaints may be registered if the complainant provides sufficient information. (c) The department will evaluate all complaints received. (d) A complaint containing allegations which are a violation of the Act or this chapter will be investigated by the department. (e) A department representative (surveyor) may enter the premises of a center at reasonable times as necessary to assure compliance with the Act and this chapter. The department is not required to notify the applicant or licensee prior to a complaint investigation. (f) If the department determines that the complaint does not come within the department's jurisdiction, the department shall advise the complainant and, if possible, refer the complainant to the appropriate governmental agency for handling such a complaint. (g) The department shall inform in writing a complainant who identifies him or herself by name and address of the following information: (1) the receipt of the complaint; (2) whether the complainant's allegations allege potential violations of the Act or this chapter warranting an investigation; (3) whether the complaint will be investigated by the department; and (4) whether and to whom the complaint will be referred. (h) The department shall, at least as frequently as quarterly, notify the parties to the complaint of the status of the complaint until its final disposition. 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. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800830 Susan K. Steeg General Counsel Texas Department of Health Effective date: March 1, 1998 Proposal publication date: July 22, 1997 For further information, please call: (512) 458-7236 SUBCHAPTER D. Operational and Clinical Standards for the Provision and Coordination of Treatment and Services 25 TAC sec.sec.137.31-137.34, 137.36-137.55 The new sections are adopted under the Texas Birthing Center Licensing Act, Health and Safety Code, Chapter 244, which provides the Board of Health (board) with the authority to adopt rules governing the licensing and regulation of birthing centers; and sec.12.001, which provides the board with the authority to adopt rules to implement every duty imposed by law on the board, the department, and the commissioner of health. sec.137.31. Operational and Clinical Policies. A center shall develop, implement, and enforce policies governing the center's total operation and ensure that these policies are administered so as to provide quality health services in a safe environment. sec.137.32. Organizational Structure and Delegation of Authority. (a) A center shall establish a written organizational structure which shall include the lines of authority and the delegation of responsibility for professional and non-professional staff. (b) The center shall appoint an administrator and a clinical director. The administrator and clinical director may be the same person and may be the owner. (1) The administrator shall be responsible for implementing and supervising the operational policies of the center. (2) The clinical director shall be responsible for implementing the clinical policies of the center. (c) The owner of a center is responsible for ensuring total compliance with the Act and the provisions of this chapter. sec.137.33. Personnel Policies. The center shall develop, implement, and enforce policies governing all personnel staffed by the center. The personnel policies shall cover the following: (1) job descriptions for all personnel providing client care; (2) a requirement for orientation or training of all employees, volunteers, students and contractors; (3) a requirement for an annual evaluation of employee performance; (4) in service and continuing education requirements; and (5) evidence that all birth attendants are currently certified by the American Heart Association or the American Red Cross in basic life support and the American Academy of Pediatrics or the American Heart Association in neonatal resuscitation. sec.137.34. Qualifications and Duties of Staff. (a) One person may act in the capacity of the administrator, the clinical director, and the birth attendant provided that person meets all the minimum qualifications set out in paragraphs (2)(A) and (3)(A) of this subsection and is capable of performing all of the duties specifically stated in paragraphs (1)(B), (2)(B), and (3)(B) of this subsection. In the event the center birth attendants include a documented midwife, a certified nurse midwife, or a physician, the certified nurse midwife or physician shall be the clinical director. The minimum qualifications and duties for the administrator, the clinical director, the birth attendant, and other non-professional personnel of a center are as follows. (1) Administrator. (A) Qualifications. If the administrator does not meet the qualifications of a birth attendant as set out in paragraph (3)(A) of this subsection, the administrator or his or her designee shall: (i) have six months training or experience in business administration, or have at least six months full-time supervisory or administrative experience in a health care or a health related facility; (ii) not have been employed in the last year as an administrator with another center or health care facility at the time the center or facility was cited for violations of a licensing law or rule which resulted in enforcement action taken against the center or health related facility. For purposes of this clause only, the term "enforcement action" means license revocation, suspension, emergency suspension, or denial of a license or injunction action but does not include administrative or civil penalties. If the department prevails in one enforcement action (e.g. injunctive action) against the center but also proceeds with another enforcement action (e.g. revocation) based on some or all of the same violations, but the department does not prevail in the second action (e.g., the center prevails), the prohibition in this clause does not apply; (iii) be able to read, write, and comprehend English, or have an appropriate interpreter accessible for understanding the provisions of the Act and this chapter; and (iv) not have been convicted of a felony or misdemeanor listed in sec.137.22 of this title (relating to License Denial, Suspension, or Revocation). (B) Duties. The administrator shall: (i) administratively supervise the provision of services at the center; (ii) organize and direct the center's ongoing functions; (iii) employ qualified staff; (iv) ensure adequate education and evaluations of staff; (v) supervise non-professional staff; (vi) ensure the accuracy of public education information materials and activities in relation to pregnancy and birth, mother and infant care, and the center; (vii) implement an effective budgeting and accounting system which must include an auditing system for monitoring state or federal funds. The administrator shall ensure all billings or insurance claims (e.g. Medicaid) submitted are accurate; (viii) ensure that issues and complaints relating to the conduct or actions by licensed health care professional(s) are referred and reported to the appropriate licensing board, and that such review and action taken is documented; and (ix) administratively conduct or supervise the resolution(s) of compliant(s) received from clients in the delivery of their care or services received at the center. (2) Clinical director. (A) Qualifications. The clinical director shall be a licensed physician, a certified nurse-midwife (CNM), or a documented midwife. (B) Duties. The clinical director shall be responsible for: (i) developing, implementing, and monitoring the clinical policies of a birthing center and ensuring the adherence to these policies; (ii) advising and consulting with the staff of the center on all matters relating to the clinical management of all clients; and (iii) supervising all birth attendants and all minimally qualified persons. (3) Birth attendant. (A) Qualifications. The birth attendant shall be a physician, certified nurse- midwife (CNM), or a documented midwife. (B) Duties. The birth attendant is responsible for the management of a woman's labor and for conducting the delivery of the infant. (4) Non-professional staff. (A) Qualifications. Non-professional staff must be able to demonstrate the knowledge, skills, and abilities of their specified job duty within the center. This staff must be at least 16 years old. (B) Duties. Non-professional staff are responsible for the provision of services as assigned. These duties may include, but are not limited to, housekeeping, laundry, and sanitation in the operation of the center. (b) A center shall ensure that its birth attendants meet the following requirements. (1) Documented midwives must be documented annually in accordance with Texas Midwifery Act, Texas Civil Statutes, Article 4512i (Midwifery Act), sec.13, and the rules adopted under the Midwifery Act, sec.10. (2) Certified nurse midwives (CNM) must maintain certification as a CNM as defined in sec.137.2 of this title (relating to Definitions) (3) Physicians must maintain current licensure as a physician. (c) A center shall ensure that the personnel record for each employee includes: (1) for licensed personnel, verification of current licensure or a current copy of the license and, if a CNM, current documentation that the CNM is currently recognized as an advanced practice nurse by the Board of Nurse Examiners and certified by the American College of Nurse-Midwives (ACNM) or ACNM Accreditation Council; or (2) a copy of required documentation which is issued by the department for documented midwives. sec.137.36. Physical and Environmental Requirements for Centers. The physical and environmental requirements for a center are as follows. (1) The center shall be located within a recommended 20 minutes but with a required maximum of 30 minutes normal driving time of a referral hospital. The department may approve the location of a center that is located a further distance away if the department finds that the health and safety of the clients of the center will not be adversely affected. (2) The center must have the capacity to provide clients with liquid nourishment. The center may provide commercially packaged food to clients in individual servings. If other food is provided by the center, it will be subject to the requirements of sec.sec.229.161 - 229.173 of this title (relating to Food Service Sanitation). (3) The center must have a safe and sanitary environment properly constructed, equipped, and maintained to protect the health and safety of clients and staff. (4) The center shall provide clean hand washing facilities for clients and staff including running water and soap. (5) The center must have a functioning sink and toilet. (6) The center must be equipped with emergency lighting and have a written fire and disaster plan. (7) The center must have equipment available to sterilize instruments, equipment, and supplies before use in the center in accordance with sec.139.37(b)(1) of this title (relating to Infection Control Standards). sec.137.37. Infection Control Standards. (a) Written policies. A center shall develop, implement, and enforce infection control policies and procedures to minimize the transmission and control possibilities of nosocomial infection. These policies shall include, but not be limited to, the prevention of the transmission of human immunodeficiency virus (HIV), hepatitis B virus (HBV), hepatitis C virus (HCV), Mycobacterium tuberculosis (TB), Staphylococcus aureus, and Streptococcus species (SP); educational course requirements; cleaning and laundry requirements; and decontamination, disinfection, sterilization, and storage of sterile supplies. (b) Prevention and control of the transmission of HIV, HBV, HCV, TB, and staphylococcus aureus, and Streptococcus aureus (SP). (1) Universal/standard precautions. (A) A center shall ensure that all staff comply with standard precautions as defined in this paragraph. (i) Universal precautions includes procedures for disinfection and sterilization of reusable medical devices and the appropriate use of infection control, including hand washing, the use of protective barriers, and the use and disposal of needles and other sharp instruments according to those procedures contained in the document titled "Guideline for Isolation Precautions in Hospitals (Including subacute care or extended care facilities)," which is published by the Centers for Disease Control of the United States Public Health Service. Copies of the standards and guidelines are available for review at the Texas Department of Health, Health Facility Licensing Division, Exchange Building, 8407 Wall Street, Austin, Texas, 78754. Copies may also be obtained by calling or writing the Centers for Disease Control, at Public Health Service, Center for Disease Control and Prevention, National Center for Infectious Disease, Hospital Infection Program, Mail Stop C01, Atlanta, Georgia 300333, telephone (404) 639- 2318. (ii) Standard precautions synthesize the major points of universal precautions with the points of body substance precautions and applies them to all patients receiving care in centers, regardless of their diagnosis or presumed infection status. (I) Standards precautions apply to: (-a-) blood; (-b-) body fluids, secretions, and excretions except sweat, regardless of whether or not they contain visible blood; (-c-) nonintact skin; and (-d-) mucous membranes. (II) Standard precautions are designed to reduce the risk of transmission of microorganisms from both recognized and unrecognized sources of infection in health care facilities. (B) A center shall establish procedures for monitoring compliance with standard (universal) precautions described in subparagraph (A) of this paragraph. (2) Health care workers infected with the HIV or HBV. A center shall adopt, implement, and enforce a written policy to ensure compliance of the center and all of the health care workers within the center with the Health and Safety Code, Chapter 85, Subchapter I, concerning the prevention of the transmission of HIV and HBV by infected health care workers. (3) Educational course work and/or training. A center shall require its health care workers to complete educational course work or training in infection control and barrier precautions, including basic concepts of disease transmission, scientifically accepted principles and practices for infection control and engineering and work practice controls. To fulfill the requirements of this paragraph, course work or training may include formal education courses and in-house training or workshops provided by the center. The course work or training shall include, but not be limited to: (A) HIV infection prevention based on the model education programs developed by the department in accordance with Health and Safety Code, sec.85.010. Copies of the Model HIV/AIDS Education Program are available from the department by calling (512) 490-2535 or by writing to the Texas Department of Health, Bureau of HIV and STD Prevention, Training and Public Education Branch, 1100 West 49th Street, Austin, Texas 78756-9987; and (B) HBV, HCV, TB, and staph infection prevention based on standard precautions as defined in paragraph (1) of this subsection; (C) bidirectional aspect of disease transmission; and (D) epidemic control. (c) Cleaning and laundry policies and procedures. (1) A center shall develop, implement, and enforce written policies and procedures on cleaning the center. (2) A center shall develop, implement, and enforce written policies and procedures for the handling, processing, storing, and transporting of clean and dirty laundry. (3) A center may provide cleaning and laundry services directly or by contract in accordance with Occupational Safety and Health Association standards. (d) Policies and procedures for decontamination, disinfection, sterilization, and storage of sterile supplies. A center shall have written policies covering its procedures for the decontamination and sterilization activities performed. Policies shall include but not be limited to the receiving, cleaning, decontaminating, disinfecting, preparing and sterilization of critical items (reusable items), as well as those for the assembly, wrapping, storage, distribution, and quality control of sterile items and equipment. (1) Supervision. The decontamination, disinfection, and sterilization of all supplies and equipment shall be under the supervision of a person qualified by education, training and experience. (2) Quantity of sterile surgical instruments. The center shall ensure that surgical instruments are sufficient in number to permit sterilization of the instrument(s) used for each procedure. (3) Inspection of surgical instruments. (A) All instruments shall undergo inspection before being packaged for reuse or storage. Routine inspection of instruments shall be made to assure clean locks, crevices, and serrations. (B) Inspection procedures shall be thorough and include visual and manual inspection for condition and function. (i) Cutting edges shall be checked for sharpness; tips shall be properly aligned, and instruments shall be clean and free from buildup of soap, detergent, dried blood, or tissue. (ii) There shall be no evident cracks or fissures, and the hinges shall work freely. (iii) There shall be no corrosion or pitting of the finish. (C) Instruments needing maintenance shall be taken out of service and repaired by someone qualified to repair surgical instruments. (D) To protect the instrument and its protective finish, impact markers or electric engravers shall not be used for instrument identification. Instrument identification shall be accomplished by the instrument manufacturer, employing methods which will not damage the instrument or its protective finish. (4) Items to be disinfected and sterilized . (A) Critical items. (i) Critical items include all surgical instruments and objects that are introduced directly into the bloodstream or into other normally sterile areas of the body and must be sterilized in accordance with this subsection. (ii) All items that come in contact with the sterile field during the operative procedure must be sterile. (B) Semicritical items. (i) Semicritical items include items that come in contact with nonintact skin or mucous membranes. Semicritical items shall be free of microorganisms, except bacterial spores. Semi-critical items may include respiratory therapy equipment and thermometers. (ii) High-level disinfection shall be used for semi-critical items. (C) Non-critical items. (i) Noncritical items include items that come in contact with intact skin. (ii) Intermediate-level or low-level disinfection shall be used for non-critical items. (5) Equipment and sterilization procedures. Effective sterilization of instruments depends on performing correct methods of cleaning, packaging, arrangement of items in the sterilizer, and storage. The following procedures shall be included in the written policies as required in this paragraph to provide effective sterilization measures. (A) Equipment. A center shall provide sterilization equipment adequate to meet the requirements of this paragraph for sterilization of critical items. Equipment shall be maintained and operated to perform, with accuracy, the sterilization of critical items. (B) Environmental requirements. Where cleaning, preparation, and sterilization functions are performed in the same room or unit, the physical facilities, equipment, and the written policies and procedures for their use shall be such as to effectively separate soiled or contaminated supplies and equipment from the clean or sterilized supplies and equipment. (i) A center shall have a sink for hand washing. This sink shall not be used for cleaning instruments or disposal of liquid waste. (ii) A center shall have a separate sink for cleaning instruments and disposal of liquid waste. Hand washing may only be performed at this sink after it has been disinfected. (C) Preparation for sterilization. (i) All items to be sterilized shall be prepared to reduce the bioburden. All items shall be thoroughly cleaned, decontaminated, and prepared in a clean, controlled environment. Cleaning is the removal of all adherent visible soil from the surfaces, crevices, joints, and lumens of instruments. Decontamination is the physical/chemical process that renders an inanimate object safe for further handling. (ii) One of the following methods of cleaning and decontamination shall be used as appropriate. (I) Manual cleaning. Manual cleaning of instruments at the sink is permitted. (II) Ultrasonic cleaning. Ultrasonic cleaning of instruments cleans by cavitation and reduces the need for hand scrubbing. When grossly soiled items are placed in the ultrasonic cleaner the water must be changed more than once a shift. If using this method for cleaning, chambers shall be covered to prevent potential hazards to personnel from aerosolization of the contents. (III) Washer-sterilizers. Washer-sterilizers clean by using rotating spray arms to create water jets that clean by impingement and appropriate soap and disinfectant. These machines must reach a temperature of 140 degrees Celsius (285 degrees Fahrenheit). (IV) Washer-decontaminator machines. Washer-decontaminator machines clean by numerous water jets and a high-pH of detergent even if instruments are grossly soiled. The thorough cleaning is followed by a neutralizing rinse to quickly restore the pH to neutral. (iii) All articles to be sterilized shall be arranged so all surfaces will be directly exposed to the sterilizing agent for the prescribed time and temperature. (D) Packaging. (i) All wrapped articles to be sterilized shall be packaged in materials recommended for the specific type of sterilizer and material to be sterilized, and to provide an effective barrier to microorganisms. Acceptable packaging includes peel pouches, perforated metal trays, or rigid trays. Muslin packs must be limited in size to 12 inches by 12 inches by 20 inches with a maximum weight of 12 pounds. Wrapped instrument trays must not exceed 17 pounds. (ii) All items shall be labeled for each sterilizer load as to the date and time of sterilization, the sterilizing load number, and the autoclave. (E) External chemical indicators. (i) External chemical indicators, also known as sterilization process indicators, shall be used on each package to be sterilized, including items being flash sterilized to indicate that items have been exposed to the sterilization process. (ii) The indicator results shall be interpreted according to the manufacturer's written instructions and indicator reaction specifications. (iii) A log shall be maintained with the load identification, indicator results, and identification of the contents of the load. (F) Biological indicators. (i) The efficacy of the sterilizing process shall be monitored with reliable biological indicators appropriate for the type of sterilizer used (e.g., Bacillus stearothermophilus) for steam sterilizers. (ii) Biological indicators shall be included in at least one run each day of use for steam sterilizers. (iii) A log shall be maintained with the load identification, biological indicator results, and identification of the contents of the load. (iv) If a test is positive, the sterilizer shall immediately be taken out of service. A malfunctioning sterilizer shall not be put back into use until it has been serviced and successfully tested according to the manufacturer's recommendations. (v) All available items shall be recalled and reprocessed if a sterilizer malfunction is found; and a list of all items which were used after the last negative biological indicator test shall be submitted to the administrator. (G) Sterilizers. (i) Steam sterilizers (saturated steam under pressure) shall be utilized for sterilization of heat and moisture stable items. Steam sterilizers shall be used according to manufacturer's written instructions. (ii) Other sterilizers shall be used in accordance with the manufacturer's instructions. (H) Maintenance of sterility. (i) Items that are properly packaged and sterilized will remain sterile indefinitely unless the package becomes wet or torn, has a broken seal, is damaged in some way, or is suspected of being compromised. (ii) Medication or materials within a package, that deteriorate with the passage of time, shall be dated according to the manufacturer's recommendations. (iii) All packages must be inspected before use. If a package is torn, wet, discolored, has a broken seal, or is damaged, the item may not be used. The item must be returned to sterile processing for reprocessing. (I) Commercially packaged items. Commercially packaged items are considered sterile according to the manufacturer's instructions. (J) Storage of sterilized items. The loss of sterility is event-related, not time related. The center shall ensure proper storage and handling of items in a manner that does not aid the compromise of the packaging of the product. (i) Sterilized items shall be transported so as to maintain cleanliness and sterility and to prevent physical damage. (ii) Sterilized items shall be stored in well-ventilated, limited access areas with controlled temperature and humidity. (iii) Sterilized items shall be positioned so that the packaging is not crushed, bent, compressed, or punctured so that their sterility is not compromised. (iv) Storage of supplies shall be in areas that are designated for storage. (K) Disinfection. (i) The manufacturer's written instructions for the use of disinfectants shall be followed. (ii) An expiration date, determined according to manufacturer's written recommendations, shall be marked on the container of disinfection solution currently in use. (iii) Disinfectant solutions shall be kept covered and used in well ventilated areas. (L) Performance records. (i) Performance records for all sterilizers shall be maintained for each cycle. These records shall be retained and available for review for a minimum of two years. (ii) Each sterilizer shall be monitored during operation for pressure, temperature, and time at desired temperature and pressure. A record shall be maintained either manually or machine generated and shall include: (I) the sterilizer identification; (II) sterilization date and time; (III) load number; (IV) duration and temperature of exposure phase (if not provided on sterilizer recording charts); (V) identification of operator(s); (VI) results of biological tests and dates performed; and (VII) time-temperature recording charts from each sterilizer (if not provided on sterilizer recording charts). (M) Preventive maintenance. Preventive maintenance of all sterilizers shall be performed according to individual policy on a scheduled basis by qualified personnel, using the sterilizer manufacturer's service manual as a reference. A preventive maintenance record shall be maintained for each sterilizer. These records shall be retained at least two years and shall be available for review. sec.137.38. Disposition of Medical Waste. A center shall meet requirements set forth by the department in sec.sec.1.131- 1.137 of this title (relating to Definition, Treatment, and Disposition of Special Waste from Health Care Related Facilities). (1) Placentas and all biomedical waste shall be disposed of in accordance with sec.sec.1.131 - 1.137 of this title. (2) Placentas shall not be placed in the trash or dumpster for disposal. (3) A center may give the placenta to the client or family at the time of discharge upon request by the client or family. sec.137.39. General Requirements for the Provision and Coordination of Treatment and Services. (a) A center shall develop, implement, and enforce policies for the provision and coordination of treatment and services. (b) A center and the client shall have a written agreement for services. The center shall obtain an acknowledgment of receipt of the agreement. The center shall comply with the terms of the agreement. The written agreement shall include, but may not be limited to, the following: (1) services to be provided; (2) supervision by the center of services provided; and (3) charges for services rendered if the charges will be paid in full or in part by the client or the client's family, or on request. (c) When services are provided through a contract, a center must assure that these services are also provided in a safe and effective manner. If a center utilizes independent contractors, there shall be a written agreement between such independent contractors (i.e. per hour, per visit) and the center. The agreement shall be enforced by the center and clearly designate: (1) that clients are accepted for care only by the center; (2) the services to be provided; (3) the necessity to conform to the Act, this chapter, and all applicable center policies, including personnel qualifications; and (4) the manner in which services will be coordinated and evaluated by the center. (d) A center shall not commit an intentional or negligent act that adversely affects the health or safety of a client. (e) A center must ensure that its licensed health care professionals practice within the scope of their practice and within the constraints of applicable state laws and regulations governing their practice and must follow the facility's written policies and procedures. (f) A center that provides care or services to a client based upon laboratory, radiological, or ultrasonography reports or medical records from another state or country, shall have these reports and records reviewed by a licensed health care professional within his or her scope of practice. The clinical record shall contain evidence of the licensed health care professional's review of these reports and records and of any recommendations. (g) A center may accept student midwives to provide their clinical experience in accordance with the educational requirements as specified in sec.37.180 of this title (relating to Education). (h) If a center has a contract or agreement with an accredited school of health care to use their center for a portion of a students' clinical experience, those students may provide care under the following conditions. (1) Students may be used in centers, provided the instructor gives class supervision and assumes responsibility for all student activities occurring within the center. (2) All instruction must be provided by the school's instructor. (3) A student may administer medications only if: (A) on assignment as a student of their school of health care; and (B) the instructor within their licensed scope of practice is on the premises and directly supervises the administration of medication by the student. (4) Students shall not be used to fulfill the requirement for administration of medications by licensed personnel. (5) Students shall not be considered when determining staffing needs required by the center. sec.137.40. Risk Assessments. (a) Risk assessment system. A center shall adopt, implement, and enforce a written risk assessment system that complies with this section, conforms to accepted standards of practice, and has been approved by the center's clinical director. The center shall apply the risk assessment system to clients prior to admission and throughout the pregnancy for continuation of services and during the postpartum period. (b) Admission. A birth attendant shall perform the risk assessment of a potential client prior to accepting the client for admission and shall only admit a client that has been assessed to have a low-risk pregnancy. (c) Change in risk status, transfer, and referral. The clinical director and staff shall adopt, implement, and enforce written criteria for the assessment of a client who develops complications during pregnancy that would require the transfer or referral of the client or infant from the center. The written criteria shall be reviewed and updated annually by the clinical director. (1) The center shall recognize and document in the client's clinical record when the client's condition deviates from a low-risk pregnancy at any time during the antepartum, intrapartum, or postpartum period. The center shall refer or transfer the client to a hospital or physician consultant in accordance with the written policies described in paragraph (2) of this subsection. (2) The clinical director shall develop, implement, and enforce written policies for the transfer of a client or infant to a physician consultant or a referral hospital. The written policies shall include provisions: (A) for transfer or referral to a hospital within a recommended 20 minutes, but not more than 30 minutes if emergency care is required; (B) for notifying the receiving physician prior to the transfer; (C) for notifying the receiving hospital prior to the transfer; (D) for sending a copy of the clinical record to the hospital or physician consultant at the time of transfer; and (E) describing the duties and responsibilities of staff during the transfer procedure. (3) The center shall document the transfer or referral in the client's clinical record in accordance with sec.137.53(9)(Q) of this title (relating to Clinical Records). sec.137.41. Emergency Services. The center shall provide emergency services when a critical period develops during delivery. (1) A center shall have an emergency call system and suction equipment for use when there is a critical period. The center shall have available in the center personnel trained in cardiopulmonary resuscitation (CPR) to be available whenever there is a client in labor or immediately postpartum. (2) A center shall provide emergency equipment and emergency medications commensurate with the skill level of the attendant, but minimally, as follows: (A) oxygen; (B) airways and manual infant breathing bags; (C) suction equipment; and (D) a neutral thermal environment for resuscitation. sec.137.42. Disclosure Requirements. (a) At the time of initial visit a center must provide the client, and if the client is a minor, his or her guardian: (1) a written statement that complaints may be registered with the Director, Health Facility Compliance Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, telephone (800) 228-1570; and (2) a disclosure statement and informed consent that explains the benefits, limitations, and risks of the services available to them at the center, and that describes the collaborative arrangements that the center has with physicians and referral hospitals. (b) A center shall ensure that its documented midwives meet the disclosure requirements in the Texas Midwifery Act, Texas Civil Statutes, Article 4512i, sec.16. sec.137.43. Prenatal Care. If prenatal care is provided, the center shall comply with accepted standards of practice sec.137.44. Serologic Test for Syphilis and Human Immunodeficiency Virus (HIV) Infection. A center shall ensure that its birth attendants comply with Health and Safety Code, sec.81.090 relating to serologic test for syphilis and HIV infection during pregnancy and within 24 hours of delivery. The center shall ensure that the results of any HIV test are kept confidential pursuant to the Health and Safety Code, sec.81.103. sec.137.45. Physician Delegation. If a center allows its midwives to accept delegation of tasks by a physician, the center shall ensure that such delegation is in accordance with the Medical Practice Act, Texas Civil Statutes, Article 4495b, sec.3.06. sec.137.46. Physician Consultant Procedures. (a) A center shall adopt, implement, and enforce written procedures for consultation with physicians for clients who develop medical complications. (b) A physician consultant shall be a Texas licensed physician, preferably who practices obstetrics and/or pediatrics and who is readily available by telephone or who can able to be present in the center or hospital to deliver emergency care within a recommended 20 minutes but with a required maximum of 30 minutes. sec.137.47. Procedures for Drugs and Biologicals. (a) Drugs and biologicals which may be provided by a center must be handled and stored in a safe and effective manner in accordance with written policies and procedures established by the center and state and federal laws. (b) Drugs must be administered according to established written policies and procedures and accepted standards of practice, in accordance with state and federal laws. sec.137.48. Labor and Birth Procedures. (a) Labor and birth shall be managed and attended by a birth attendant. (b) The birth attendant shall be trained in the use of emergency equipment and shall be currently certified in adult and infant cardiopulmonary resuscitation. (c) A center shall ensure that its birth attendants encourage a client to seek medical care if the birth attendant recognizes a sign or symptom of a complication to the client's childbirth. (d) An adult minimally qualified person shall be physically present in the center whenever a client is in the center. This minimally qualified person shall be capable of performing the following minimum duties: (1) monitoring the fetal heartbeat; (2) monitoring the mother's blood pressure, pulse, and temperature; (3) performing adult and infant cardiopulmonary resuscitation, if needed; and (4) monitoring the infant's heart rate, respiratory rate and body temperature. (e) A birth attendant shall be physically present to conduct the delivery and be available within ten minutes during the acute postpartum period. (f) Interventions shall be limited to those required to accomplish an uncomplicated vaginal delivery. (g) No general, epidural, or subdural anesthetic agent shall be administered in a center. (h) A center shall ensure that its documented midwives do not violate the labor and delivery provisions of the Texas Midwifery Act, Texas Civil Statutes, Article 4512i, sec.17 or sec.18, relating to prohibited acts and criminal penalties. sec.137.49. Care of the Infant. (a) A center shall adopt, implement, and enforce written policies and procedures for the care of the infant. The center shall review and revise the policies as necessary to reflect current practices. The policies shall include, but not be limited to, the following: (1) resuscitation of the newborn; (2) prophylactic treatment of the eyes; (3) physical examination of the newborn before discharge with the documentation; (4) referral for any abnormalities or problems; (5) the collection of blood for newborn screening; and (6) procedures for the detection of RH and ABO isoimmunization. (b) A center shall ensure that its birth attendants comply with the Health and Safety Code, sec.81.091, relating to the use of prophylaxis to prevent ophthalmia neonatorum. (c) A center shall ensure that its birth attendants (1) the Health and Safety Code, sec.33.011; and (2) sec.sec.37.51 - 37.56 of this title (relating to Newborn Screening Program). sec.137.50. Discharge Procedures. (a) The mother and infant shall be discharged from the center when both are clinically stable and have met discharge criteria established by the center in collaboration with the birth attendants. (b) The mother and infant shall not be discharged prior to two hours from the time of birth. If the mother or infant remain at the center for medical reasons for more than 24 hours after birth, a report shall be filed with the Texas Department of Health, Health Facility Licensing Division, 1100 West 49th Street, Austin, Texas 78756. The report shall be filed within 48 hours after the birth describing the circumstances and reasons for the extended stay. (c) A center must provide the mother with written discharge instructions. The discharge instructions must include written guidelines detailing how the mother may obtain emergency assistance for herself and infant. sec.137.51. Postnatal and Postpartum Care of the Mother and Infant. The center shall develop, implement, and enforce written guidelines to provide follow-up postnatal and postpartum care to the infant and the mother either directly or by referral. Follow-up care may be provided in the center, at the mother's residence, by telephone, or by a combination of these methods in accordance with accepted standards of practice. sec.137.52. Quality Assurance. (a) Quality assurance program. The center shall adopt, implement, and enforce a written quality assurance(QA) program that includes all health and safety aspects of client care for both mother and infant. (1) The QA program shall include a review of the care and services provided. (2) The QA program shall be ongoing and have a written plan of implementation. This plan must be reviewed and updated or revised at least annually. (3) The QA program shall include measures for quality improvement in the measurement of the center's quality delivery. (4) The results of the quality assurance program must be reviewed and documented at least quarterly. (5) The quality assurance program shall include, but not be limited to: (A) a review of the clinical record(s); (B) incidences of morbidity and mortality of mother and infant; (C) postpartum infections; (D) all cases transferred to a hospital for delivery, care of infant, or postpartum care of mother; (E) a review of the length of stay of mothers and infants in the center to ascertain that optimal length of stay was achieved for each case; (F) incidents and problems and potential problems identified by staff of the center, including infection control; (G) address issues of unprofessional conduct by any member of the center's staff (including contract staff); (H) address the integrity of surgical instruments, medical equipment, and patient supplies; (I) address services performed in the facility as they relate to appropriateness of diagnosis and treatment; and (J) address medication therapy practices, if applicable; (K) problems with compliance with any federal and state laws and rules. (b) Quality issues. The center shall identify and address quality issues and implement corrective action plans as necessary. (1) Identifying quality issues that necessitate action. The center shall be responsible for identifying issues that necessitate corrective action by the program, such as issues which negatively affect quality of care or services provided to clients. (2) Plan of corrective action. The center shall develop and implement plans of action to correct identified quality deficiencies. (3) Remedial action. The center shall take and document remedial action to address deficiencies found through activities of the QA program. The outcome of the remedial action shall be documented. (c) Departmental review. (1) A representative(s) of the department shall concentrate on verifying that the center has a quality assurance program which addresses quality concerns and that center staff know how to access that process. (2) The department will not use good faith attempts by the center to identify and correct quality deficiencies as a basis for deficiency(ies), citation(s), or sanction(s). sec.137.53. Clinical Records. The center must adopt, implement, enforce and maintain a clinical record system to assure that the care and services provided to each client is completely and accurately documented, and systematically organized to facilitate the compilation and retrieval of information. At the time of an onsite survey, all clinical records must be readily retrievable for review within two hours of the request. (1) For each client, a center may keep a single file or separate files for each stage of service provided to the client. (2) The center shall have written procedures which are adopted, implemented, and enforced regarding the removal of records and the release of information. A center shall not release any portion of a client record to anyone other than the client except as allowed by law. (3) All information regarding the client's care and services shall be centralized in the client's record and be protected against loss or damage. (4) The center shall establish an area for client record storage at the center's place of business. The client record shall be stored at the place of business from which services are actually provided. (5) The center shall ensure that each client's record is treated with confidentiality, safeguarded against loss and unofficial use, and is maintained according to professional standards of practice. (6) The clinical record shall be an original, a microfilmed copy, an optical disc imaging system, or a certified copy. An original record includes manually signed paper records or electronically signed computer records. Computerized records shall meet all requirements of paper records including protection from unofficial use and retention for the period specified in paragraph (10) of this section. Systems shall assure that entries regarding the delivery of care or services may not be altered without evidence and explanation of such alteration. (7) Each entry to the client record shall be accurate, signed, and dated with the date of entry by the individual making the entry. Correction fluid or tape shall not be used in the record. Corrections shall be made by striking through the error with a single line and shall include the date the correction was made and the initials of the person making the correction. (8) Inactive client records may be preserved and stored on microfilm, optical disc or other electronic means. Security shall be maintained and records must be readily retrievable by the center within two hours of a request for a record(s) by the department. (9) The clinical record must contain the following: (A) appropriate identifying information; (B) name of the client's practitioner; (C) initial risk assessment; (D) a disclosure statement and informed consent that is signed by a client that explains the benefits, limitations, and risks of the services available to them at the center, and that describes the collaborative arrangements that the center has with physicians and with referral hospitals; (E) the disclosure statement required to be given a client by a documented midwife, if applicable; (F) record of antepartum (prenatal) care; (G) history and physical examination of the clients; (H) laboratory procedures; (I) progress notes. Such notes are to be written and signed and dated by the person rendering the service the day service is rendered and incorporated into the client record on a timely basis; (J) medication list and medication administration record, if applicable; (K) intrapartum care; (L) infant care; (M) postpartum care; (N) allergies and medication reactions; (O) documentation for consultation; (P) refusal of the client to comply with advice or treatment; (Q) discharge summary, including the reason for discharge or transfer and the center's documented notice to the client or the client's guardian and the client's physician; and (R) documentation that: (i) a birth certificate was filed; or (ii) if applicable, a death certificate was filed. (10) A center shall retain original client records for a minimum of five years after the discharge of the client. The center may not destroy client records that relate to any matter that is involved in litigation if the center knows the litigation has not been finally resolved. (11) If a center closes, there shall be an arrangement for the preservation of inactive records to ensure compliance with this section. The center shall send the department written notification of the reason for closure, the location of the client records and the name and address of the client record custodian. If a center closes with an active client roster, a copy of the active client record shall be transferred with the client to the receiving center or other health care facility in order to assure continuity of care and services to the client. sec.137.54. Reporting and Filing Requirements. (a) Reportable conditions and incidents. (1) A center shall report communicable diseases required to be reported under the Health and Safety Code, sec.81.042, and in accordance with the department's rules under sec.sec.97.2 - 97.5 of this title (relating to Control of Communicable Diseases). (2) The following incidents shall be reported to the department in writing by mail or fax within five calendar days of the occurrence to the director of Health Facility Licensing Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas, 78756: (A) a death of a client, infant, or stillborn occurring in the center; and (B) a death of a client, infant, or stillborn occurring within 24 hours of discharge from the center or transfer to another health care facility. (b) Birth certificate filing requirements. (1) A center administrator or his or her designee shall: (A) file a birth certificate for each birth at the center; or (B) ensure that its birth attendants file the birth certificate in accordance with the Health and Safety Code, sec.192.003. (2) A center administrator, his or her designee, or any of its birth attendants shall not commit an offense relating to filing false reports under the Health and Safety Code, sec.195.003 or fail to perform a duty under the Health and Safety Code, sec.195.004. (c) Death certificate filing requirements. A center administrator or birth attendant shall file a death certificate in accordance with subsection (a)(2) of this section. (d) Data collection for birth defects. If the Board of Health (board) requires data collection concerning birth defects under the Health and Safety Code, sec.87.022, the center or its birth attendants shall make available for review by the department or by an authorized agent clinical records or other information that are in the center's or birth attendant's custody or control and that relate to the occurrence of a birth defect specified by the board. sec.137.55. Other State and Federal Compliance Requirements. (a) A center utilizing the services of a documented midwife shall ensure that its documented midwife(ives) do not violate the Texas Midwifery Act, Texas Civil Statutes, Article 4512i, sec.17 or sec.18, relating to prohibited acts and criminal penalties, while functioning in his or her capacity at or for the center. (b) A center shall ensure that its documented midwives comply with sec.sec.37.171 - 37.185 of this title (relating to Midwives), while functioning in his or her capacity at or for the center. (c) A center that provides laboratory services shall meet the Clinical Laboratory Improvement Amendments of 1988, 42 United States Code, sec.263a, Certification of Laboratories (CLIA 1988). CLIA 1988 applies to all centers with laboratories that examine human specimens for the diagnosis, prevention, or treatment of any disease or impairment of, or the assessment of the health of, human beings. If a center accepts laboratory test results from another state or foreign country, such as Mexico, the laboratory documents must be reviewed and approved by a licensed health professional within his or her scope of practice. (d) A center utilizing the services of a registered nurse(s) shall ensure that its registered nurse(s) comply with the Nursing Practice Act, Texas Civil Statutes, Articles 4525a and 4525b, relating to professional nurse reporting and peer review, while functioning in his or her capacity at or for the center. (e) A center utilizing the services of a licensed vocational nurse(s) shall ensure that its licensed vocational nurse(s) comply with the Board of Vocational Nurse Examiners rules at 22 Texas Administrative Code, sec.sec.240.11- 240.13, relating to licensed vocational nurse peer review and reporting, while functioning in his or her capacity at or for the center. (f) A center utilizing the services of a physician(s) shall ensure that its physician(s) comply with the Medical Practice Act, Texas Civil Statutes, Article 4495b, while functioning in his or her capacity at or for the center. (g) A center utilizing the services of a physician assistant(s) shall ensure that its physician assistant(s) comply with the Physician Assistant Licensing Act, Texas Civil Statutes, Article 4495b-1, relating to supervision requirements, while functioning in his or her capacity at or for the center. (h) A center that provides pharmacy services shall obtain a license as a pharmacy if required by the Texas Pharmacy Act, Texas Civil Statutes, Article 4542a-1. (i) A center shall comply with the following federal Occupational Safety and Health Administration requirements: (1) 29 Code of Federal Regulations, Subpart E, sec.1910.38, relating to employee emergency plans and fire prevention plans; (2) 29 Code of Federal Regulations, Subpart I, sec.1910.132, relating to general requirements for personal protective equipment; (3) 29 Code of Federal Regulations, Subpart I, sec.1910.133, relating to eye and face protection; (4) 29 Code of Federal Regulations, Subpart I, sec.1910.138, relating to hand protection; (5) 29 Code of Federal Regulations, Subpart L, sec.1910.157, relating to portable fire extinguishers; (6) 29 Code of Federal Regulations, Subpart Z, sec.1910.1030, relating to blood borne pathogens; and (7) 29 Code of Federal Regulations, Subpart Z, sec.1910.1200, Appendices A - E, relating to hazard communication (hazardous use of chemicals). (j) A center shall not use adulterated or misbranded drugs or devices in violation of the Health and Safety Code, sec.431.021. Adulterated drugs and devices are described in Health and Safety Code, sec.431.111. Misbranded drugs or devices are described in Health and Safety Code, sec.431.112. (k) A center shall not commit a false, misleading, or deceptive act or practice as that term is defined in the Deceptive Trade Practices-Consumer Protection Act, Business and Commerce Code, sec.17.46. 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. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800831 Susan K. Steeg General Counsel Texas Department of Health Effective date: March 1, 1998 Proposal publication date: July 22, 1997 For further information, please call: (512) 458-7236 TITLE 31. NATURAL RESOURCES AND CONSERVATION PART I. General Land Office CHAPTER 9. Exploration and Leasing of Oil and Gas 31 TAC sec.9.7 The Texas General Land Office adopts an amendment to sec.9.7, concerning Exploration and Leasing of Oil and Gas, without changes to the proposed text as published in the December 12, 1997, issue of the Texas Register (22 TexReg 12248). The amendments are being adopted to implement sec.404.095 of the Texas Government Code, concerning the electronic transfer of funds to state agencies. The amendments establish thresholds regarding oil and gas royalty payments made to the state which, when exceeded, trigger a requirement that such payments be made by means of electronic funds transfer. No comments were received regarding the proposed amendments. The amendment is adopted under Texas Government Code, sec.404.095, which permits certain state agencies to adopt rules regarding electronic funds transfer, and Texas Natural Resources Code, sec.31.051, which grants rulemaking authority to the commissioner of the General Land 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. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800765 Garry Mauro Commissioner General Land Office Effective date: February 5, 1998 Proposal publication date: December 12, 1997 For further information, please call: (512) 305-9129 CHAPTER 10. Exploration and Development of State Minerals Other than Oil and Gas 31 TAC sec.10.8 The Texas General Land Office adopts an amendment to sec.10.8, concerning State Minerals Other Than Oil and Gas, without changes to the proposed text as published in the December 12, 1997, issue of the Texas Register (22 TexReg 12251). The amendments are being adopted to implement sec.404.095 of the Texas Government Code, concerning the electronic transfer of funds to state agencies. The amendments establish thresholds regarding royalty payments made to the state as a result of the development of state-owned minerals other than oil and gas, which, when exceeded, trigger a requirement that such payments be made by means of electronic funds transfer. No comments were received regarding the proposed amendments. The amendment is adopted under Texas Government Code, sec.404.095, which permits certain state agencies to adopt rules regarding electronic funds transfer, and Texas Natural Resources Code, sec.31.051 which grants rulemaking authority to the commissioner of the General Land 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. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800766 Garry Mauro Commissioner General Land Office Effective date: February 5, 1998 Proposal publication date: December 12, 1997 For further information, please call: (512) 305-9129 PART X. Texas Water Development Board CHAPTER 359. Water Banking 31 TAC sec.sec.359.1-359.3, 359.8, 359.11, 359.15 The Texas Water Development Board (the board) adopts amendments to sec.sec.359.1-359.3, 359.8, and 359.11 and new sec.359.15, concerning Water Banking, without changes to the proposed text as published in the December 5, 1997, issue of the Texas Register (22 TexReg 12008) and will not be republished. The amendments and new section reflect changes to the administration of the Texas Water Bank in accordance with the changes made by Senate Bill 1 to the Texas Water Code, Chapter 15, Subchapter K. The amendments and new section will allow the board to continue to administer the water bank to facilitate water transactions to provide sources of adequate water supplies for use within the State of Texas. The amendment to sec.359.1 reflect changes in language on the purpose of the Bank to conform with the new legislative directive. The amendment to sec.359.2 redefines "conserved water" to conform to changes made to the statute. Amendment to sec.359.3 expands the role of the bank to include accepting and holding water rights for environmental purposes, a new purpose authorized by the 75h Texas Legislature. The amendment to sec.359.8 removes the 50% limitation on the deposit of water rights into the bank and makes conforming changes to reflect the removal of this limit by the 75th Texas Legislature. The amendment to sec.359.11 allows the bank to expand its role in providing information on water marketing consistent with changes to the statute. New sec.359.15 establishes the Texas Water Trust within the water bank to hold water rights dedicated to environmental purposes, as provided by the 75th Texas Legislature. The section requires the Texas Natural Resource Conservation Commission (TNRCC) to approve deposits into the trust after consultation with the board and Texas Parks & Wildlife Department, and limits the term of deposit of a right placed in the trust to that specified by the commission or, if the commission does not specify a term, for the term agreed to by the depositor and board's executive administrator. This allows compliance with the Texas Water Code, sec.15.7031(c) requirement for TNRCC approval of dedication of rights to the trust. No comments were received on the proposed amendments. The amendments and new section are adopted under the authority of the Texas Water Code, sec.6.101, which provides the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties of the board provided by the Texas Water Code and the laws of the state, and sec.15.703(b), which authorizes the board to adopt rules necessary for implementing the water bank. 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. Filed with the Office of the Secretary of State on January 15, 1998. TRD-9800650 Suzanne Schwartz General Counsel Texas Water Development Board Effective date: February 4, 1998 Proposal publication date: December 5, 1997 For further information, please call: (512) 458-7236 CHAPTER 363. Financial Assistance Programs The Texas Water Development Board (board) adopts amendments to sec.363.33 and sec.363.209, concerning Financial Assistance Programs, without changes to the proposed text as published in the December 5, 1997, issue of the Texas Register (22 TexReg 12009) and will not be republished. The Board has examined the demand for Clean Water State Revolving Fund (CWSRF) assistance and determined that in order to sustain the lending capacity of the CWSRF and the new Drinking Water State Revolving Fund (DWSRF), changes are needed in debt management policies and Board rules. Administrative Cost Recovery fees are being adjusted to reflect recent experience in the CWSRF program. The original fee structure was designed to provide sufficient budgeted revenue based upon a program size that has now been exceeded. It has been determined that the cost recovery fees and related basis point subsidies should both be adjusted. The Option Two fee structure was designed to offset the annual administrative fee payments and to be a match to the amount a borrower would have paid in loan origination charges under Option One. Experience in using the two cost recovery options has shown, however, that while the board recovers the same amount in fees from Option One or Option Two for any given loan, the actual method as to how the fees are recovered affects the overall capacity of the CWSRF program. There is a difference between the effects on the coverage requirements within the cash flow due to the additional 18 basis points being offered in all subsequent years over the life of a loan, and this difference equates to a lesser program capacity. Additionally, the Option Two method has rarely been utilized by borrowers and elimination of the option will not affect a large portion of borrowers. The amendments allow for the adjustment of subsidy and elimination of a lending option in the Clean Water State Revolving Fund programs and renumber provisions as necessary. Amendments to sec.363.33 adjust the fixed rate index scale used for insured borrowers from the 98 Scale of the Delphis Hanover Corporation Range of Yield Curve Scales (Delphis) to the higher of the borrower's uninsured fixed rate index scale or the 96 Delphis Scale, adjust the Loan Origination Charge from 2.25% of the SRF loan amount to 1.85%, and reduce the corresponding basis point subsidy (relating to Administrative Cost Recovery) from 30 basis points to 25 basis points. Amendments to sec.sec.363.33 and 363.209 eliminate Payment Option Two (Origination Charge and Servicing Charge). No comments were received on the proposed amendments. SUBCHAPTER A. General Provisions Formal Action by the Board 31 TAC sec.363.33 The amendment is adopted under the authority of the Texas Water Code, sec.6.101 which provide the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State. 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. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800729 Suzanne Schwartz General Counsel Texas Water Development Board Effective date: February 5, 1998 Proposal publication date: December 5, 1997 For further information, please call: (512) 463-7981 SUBCHAPTER B. State Water Pollution Control Revolving Fund Introductory Provisions 31 TAC sec.363.209 The amendment is adopted under the authority of the Texas Water Code, sec.6.101 which provide the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State. 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. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800730 Suzanne Schwartz General Counsel Texas Water Development Board Effective date: February 5, 1998 Proposal publication date: December 5, 1997 For further information, please call: (512) 463-7981 CHAPTER 367. Agricultural Water Conservation Program The Texas Water Development Board (the board) adopts amendments to sec.sec.367.71, 367.72, and 367.77, the repeal of sec.367.74, and new sec.367.74, concerning the Agricultural Water Conservation Program without changes to the proposed text as published in the December 12, 1997 issue of the Texas Register (22 TexReg 12251) and will not be republished. The amendments, repeal, and new section provide for the use of the Agricultural Trust Fund to make agricultural water conservation loans to eligible districts subject to the provisions of the Agricultural Water Conservation Bond Program and establish the procedure for setting interest rates. Section 367.71 is amended to add the definitions of Agricultural Trust Fund and Loan as provided in sec.15.431 and sec.17.871 of the Texas Water Code. Section 367.72 is amended to allow money maintained as principal in the Agricultural Trust Fund to be used to make agricultural water conservation loans to eligible districts. Section 367.77 is amended to make both loans and conservation loans subject to prioritization in the event that applications exceed available funds. Existing sec.367.74 is repealed and replaced with new section sec.367.74 to provide the procedure and method for setting interest rates. Section 15.431(d) of the Texas Water Code was amended by the 75th Legislature to allow principal in the Agricultural Trust Fund to be used by the board to make agricultural water conservation loans pursuant to the provisions of Chapter 17, Subchapter J of the Texas Water Code (Agricultural Water Conservation Bond Program). Chapter 367 was amended to allow the board to carry out the statutory powers authorized by sec.15.431(d) of the Texas Water Code. Since loans can be made from two separate funds, new sec.367.74 was provided to establish the interest rates for loans from both funds. The interest rates for loans from the Agricultural Conservation Fund are set at the rate necessary to pay the Agricultural Water Conservation Bonds issued by the Board to make loans from the Agricultural Conservation Fund. In order to maintain the amount of interest returning to the Agricultural Trust Fund (and the resulting amount of interest paid to the Agricultural Soil and Water Conservation Fund), interest rates for loans from the Agricultural Trust Fund are set as the asking yield of the twelve month maturity U.S. Treasury note, such rates being comparable to the interest rates that would have been earned by the Agricultural Trust Fund had the principal been invested. No comments were received on the proposed amendments, repeal and new section. Agricultural Water Conservation Loan Program 31 TAC sec.367.74 The repeal is adopted under the authority of the Texas Water Code, sec.6.101 which provides the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State, sec.17.903 related to Rules and Contracts for the Agricultural Water Conservation Bond Program, and sec.15.435 related to Guidelines for the Agricultural Soil and Water Conservation 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. Filed with the Office of the Secretary of State on January 15, 1998. TRD-9800651 Suzanne Schwartz General Counsel Texas Water Development Board Effective date: February 4, 1998 Proposal publication date: December 12, 1997 For further information, please call: (512) 463-7981 31 TAC sec.sec.367.71, 367.72, 367.74, 367.77 The amendments and new section are adopted under the authority of the Texas Water Code, sec.6.101 which provides the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State, sec.17.903 related to Rules and Contracts for the Agricultural Water Conservation Bond Program, and sec.15.435 related to Guidelines for the Agricultural Soil and Water Conservation 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. Filed with the Office of the Secretary of State on January 15, 1998. TRD-9800662 Suzanne Schwartz General Counsel Texas Water Development Board Effective date: February 4, 1998 Proposal publication date: December 12, 1997 For further information, please call: (512) 463-7981 CHAPTER 371. Drinking Water State Revolving Fund The Texas Water Development Board (board) adopts amendments to sec.371.22 and sec.371.52, concerning the Drinking Water State Revolving Fund (DWSRF), without changes to the proposed text as published in the December 5, 1997, issue of the Texas Register (22 TexReg 12011) and will not be republished. The Board has examined the demand for Clean Water State Revolving Fund (CWSRF) assistance and determined that in order to sustain the lending capacity of the CWSRF and the new Drinking Water State Revolving Fund (DWSRF), changes are needed in debt management policies and Board rules. Administrative Cost Recovery fees are being adjusted to reflect recent experience in the CWSRF program. The original fee structure was designed to provide sufficient budgeted revenue based upon a program size that has now been exceeded. It has been determined that the cost recovery fees and related basis point subsidies should both be adjusted. The Option Two fee structure was designed to offset the annual administrative fee payments and to be a match to the amount a borrower would have paid in loan origination charges under Option One. Experience in using the two cost recovery options has shown, however, that while the board recovers the same amount in fees from Option One or Option Two for any given loan, the actual method as to how the fees are recovered affects the overall capacity of the CWSRF program. There is a difference between the effects on the coverage requirements within the cash flow due to the additional 18 basis points being offered in all subsequent years over the life of a loan, and this difference equates to a lesser program capacity. Additionally, the Option Two method has rarely been utilized by borrowers and elimination of the option will not affect a large portion of borrowers. The amendments allow for the adjustment of subsidy and elimination of a lending option in the Drinking Water State Revolving Fund programs and renumber provisions as necessary. Amendments to sec.371.22 and sec.371.52 will eliminate Payment Option Two (Origination Charge and Servicing Charge). Amendments to sec.371.52 will adjust the fixed rate index scale used for insured borrowers from the 98 Scale of the Delphis Hanover Corporation Range of Yield Curve Scales (Delphis) to the higher of the borrower's uninsured fixed rate index scale or the 96 Delphis Scale. No comments were received on the proposed amendments. Program Requirements 31 TAC sec.371.22 The amendment is adopted under the authority of the Texas Water Code, sec.6.101 and sec.15.605 which provide the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State and specifically the SRF programs. 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. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800731 Suzanne Schwartz General Counsel Texas Water Development Board Effective date: February 5, 1998 Proposal publication date: December 5, 1997 For further information, please call: (512) 463-7981 Board Action on Application 31 TAC sec.371.52 The amendment is adopted under the authority of the Texas Water Code, sec.6.101 and sec.15.605 which provide the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State and specifically the SRF programs. 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. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800732 Suzanne Schwartz General Counsel Texas Water Development Board Effective date: February 5, 1998 Proposal publication date: December 5, 1997 For further information, please call: (512) 463-7981 CHAPTER 375. State Water Pollution Control Revolving Fund The Texas Water Development Board (the board) adopts amendments to sec.375.21 and sec.375.52, concerning the State Water Pollution Control Revolving Fund (SRF), without changes to the proposed text as published in the December 5, 1997, issue of the Texas Register (22 TexReg 12013) and will not be republished. The Board has examined the demand for Clean Water State Revolving Fund (CWSRF) assistance and determined that in order to sustain the lending capacity of the CWSRF and the new Drinking Water State Revolving Fund (DWSRF), changes are needed in debt management policies and Board rules. Administrative Cost Recovery fees are being adjusted to reflect recent experience in the CWSRF program. The original fee structure was designed to provide sufficient budgeted revenue based upon a program size that has now been exceeded. It has been determined that the cost recovery fees and related basis point subsidies should both be adjusted. The Option Two fee structure was designed to offset the annual administrative fee payments and to be a match to the amount a borrower would have paid in loan origination charges under Option One. Experience in using the two cost recovery options has shown, however, that while the board recovers the same amount in fees from Option One or Option Two for any given loan, the actual method as to how the fees are recovered affects the overall capacity of the CWSRF program. There is a difference between the effects on the coverage requirements within the cash flow due to the additional 18 basis points being offered in all subsequent years over the life of a loan, and this difference equates to a lesser program capacity. Additionally, the Option Two method has rarely been utilized by borrowers and elimination of the option will not affect a large portion of borrowers. Amendments to sec.375.21, Administrative Cost Recovery, eliminate Payment Option Two which provides for both an origination charge and a servicing charge. The amendments additionally adjust the Loan Origination Charge from 2.25% of the loan amount to 1.85% of the loan amount and renumber provisions as necessary. Amendments to sec.375.52, Lending Rates, adjust the fixed rate index scale used for insured borrowers from the 98 Scale of the Delphis Hanover Corporation Range of Yield Curve Scales (Delphis) to the higher of the borrower's uninsured fixed rate index scale or the 96 Delphis Scale, reduce the corresponding basis point subsidy (relating to Administrative Cost Recovery) from 30 basis points to 25 basis points, and eliminate a paragraph which refers to the Option Two payment method. No comments were received on the proposed amendments. Program Requirements 31 TAC sec.375.21 The amendment is adopted under the authority of the Texas Water Code, sec.6.101 and sec.15.605 which provide the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State including, specifically, the SRF 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. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800733 Suzanne Schwartz General Counsel Texas Water Development Board Effective date: February 5, 1998 Proposal publication date: December 5, 1997 For further information, please call: (512) 463-7981 Board Action on Application 31 TAC sec.375.52 The amendment is adopted under the authority of the Texas Water Code, sec.6.101 and sec.15.605 which provide the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties in the Water Code and other laws of the State including, specifically, the SRF 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. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800734 Suzanne Schwartz General Counsel Texas Water Development Board Effective date: February 5, 1998 Proposal publication date: December 5, 1997 For further information, please call: (512) 463-7981 TITLE 34. PUBLIC FINANCE PART I. Comptroller of Public Accounts CHAPTER 1.Central Administration SUBCHAPTER A.Practice and Procedure 34 TAC sec.1.33 The Comptroller of Public Accounts adopts an amendment to sec.1.33, concerning discovery, without changes to the proposed text as published in the December 5, 1997, issue of the Texas Register (22 TexReg 12014). The amendment clarifies that written requests for admission are an acceptable form of discovery available for use in contested case proceedings before the administrative law judges, and provides procedures for their use. No comments were received regarding adoption of the amendment. This amendment is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The amendment implements the Tax Code, sec.111.009 and sec.111.105. 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. Filed with the Office of the Secretary of State on January 13, 1998. TRD-9800486 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: February 2, 1998 Proposal publication date: December 5, 1997 For further information, please call: (512) 463-4062 CHAPTER 5.Funds Management (Fiscal Affairs) SUBCHAPTER F.Claims Processing-General Requirements 34 TAC sec.5.61 The Comptroller of Public Accounts adopts an amendment to sec.5.61, concerning approval and certification of certain payment and USPS documents with one change to the proposed text as published in the December 5, 1997, issue of the Texas Register (22 TexReg 12015). The purposes of the amendment are as follows. First, the section is being amended to address the electronic approval of payroll documents that are submitted electronically through the uniform statewide payroll/personnel system (USPS) into the uniform statewide accounting system (USAS). Those documents are not currently subject to the section's requirements because they are specifically excluded from its current definition of "payment document." Second, the section is being amended to ensure that the last electronic release of a payroll or payment document into USAS or USPS for processing is the release that counts when determining who is responsible for that document. Third, the section is being amended to reflect the fact that a state agency is not required to provide certifications to the comptroller under the Government Code, sec.2155.321 and sec.2155.322, for payments of compensation to state officers and employees. The certifications are not required because of the passage of Senate Bill 645, 75th Legislature, 1997. Fourth, the section is being amended to make certain technical corrections. The only change made to the proposed text concerns the title of sec.5.61. The title is being changed to "Approval and Certification of Certain Payment and USPS Documents." This change is necessary to correct a typographical error in the proposed text. No comments were received regarding adoption of the amendment. This amendment is adopted under the Government Code, sec.2103.032, which authorizes the comptroller to establish by rule, a system for state agencies to submit and approve their vouchers electronically, and under the Government Code, sec.2101.035, which authorizes the comptroller to adopt rules for the effective operation of USAS. The amendment implements the Government Code, sec.sec.403.071, 2101.035, 2103.004, 2103.032, 2155.322, and 2155.323. sec.5.61.Approval and Certification of Certain Payment and USPS Documents. (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Appropriation year - The accounting period beginning on September 1st and ending the following August 31st. (2) Certification - A state agency's declaration to the comptroller that: (A) the goods or services received by the agency comply with contract requirements; and (B) the invoice received by the agency for the goods or services is correct. (3) Chief deputy - For a state agency that is administered by an elected or appointed state official, the individual authorized by law to administer the agency during the official's absence or inability to act. (4) Comptroller - The comptroller of public accounts for the State of Texas. (5) Executive director - The individual who is the chief administrative officer of a state agency that is headed by a governing body. The term excludes a member of that body. (6) Governing body - The board, commission, committee, council, or other group of individuals that is collectively authorized by law to administer a state agency. (7) Head of agency - The elected or appointed state official who is authorized by law to administer a state agency. (8) Include - A term of enlargement and not of limitation or exclusive enumeration. The use of the term does not create a presumption that components not expressed are excluded. (9) Institution of higher education - Has the meaning assigned by the Education Code, sec.61.003. (10) May not - A prohibition. The term does not mean "might not" or its equivalents. (11) Non-payment document - The paper or electronic document that a state agency submits to the comptroller for the purpose of requesting the comptroller to post or correct certain accounting information in USAS. The term does not include a payment or USPS document. (12) Payee identification number - The 14 digit number that the comptroller assigns to each payee of a warrant issued or an electronic funds transfer initiated by the comptroller. (13) Payment document - The paper or electronic document that a state agency submits to the comptroller for the purpose of requesting the comptroller to make a payment on the agency's behalf. The term includes a document that uses the appropriated or other funds of a state agency to make a payment to another state agency. The term does not include a USPS document or a non- payment document. (14) Payroll document - The type of payment document that the comptroller requires a state agency to submit when requesting payment of the compensation of state officers and employees or certain other types of payments. The term does not include a USPS document. (15) State agency - A department, board, commission, committee, council, agency, office, or other entity in the executive, legislative, or judicial branch of Texas state government, the jurisdiction of which is not limited to a geographical portion of this state. The term includes an institution of higher education. (16) USAS - The uniform statewide accounting system. (17) USPS - The uniform statewide payroll/personnel system. (18) USPS document - The document that a state agency electronically submits to USPS for the purpose of requesting the comptroller to pay the compensation of state officers and employees or to make certain other types of payments. The term does not include a payment or non-payment document. (b) Required approval and certification of payment and USPS documents. (1) General Requirements. The comptroller may not make a payment on behalf of a state agency unless: (A) the agency properly submits a payment or USPS document to the comptroller requesting the payment; (B) the document has been approved according to this section; and (C) the requirements, if applicable, of paragraph (2) of this subsection have been satisfied. (2) Certification of payment and USPS documents. To the extent a payment or USPS document requests payment of anything other than the compensation of a state officer or employee, a certification concerning the document must be given to the comptroller according to this section. (3) Multiple approvals of payment and USPS documents. (A) If a payment document is approved more than once, the individual who provides the last approval is responsible for the truth and accuracy of the statement in subsection (o)(2)(B) of this section. (B) If a USPS document is approved more than once, the individual who provides the last approval is responsible for the truth and accuracy of the statement in subsection (o)(4)(B) of this section. (c) Combined approval and certification of payment and USPS documents. (1) Automatic certification. When an individual approves a payment or USPS document, the individual automatically provides its certification if the certification is required by subsection (b)(2) of this section. An individual may not approve a payment or USPS document without also providing its required certification. (2) Automatic approval. When an individual provides the required certification for a payment or USPS document, the individual automatically approves it. An individual may not provide the required certification for a payment or USPS document without also approving it. (3) References. A specific reference in subsections (e)-(q) of this section to the approval of a payment or USPS document is also a reference to any required certification provided for that document. (d) Fact findings concerning the electronic approval of payment and USPS documents. (1) Security. The comptroller has determined that the degree of security provided by the electronic approval of payment and USPS documents under this section is at least equal to the degree of security that would be provided by the non-electronic approval of those documents. (2) Operation and maintenance of USAS. The comptroller has determined that the electronic approval of payment and USPS documents under this section would facilitate the operation and administration of USAS. (e) Who may not approve payment and USPS documents. (1) State officers and employees. (A) An officer or employee of a state agency may not approve and may not be designated to approve another agency's payment and USPS documents. (B) This subparagraph applies when a state agency submits a payment or USPS document that requests payment out of the funds of a second state agency. No officer or employee of the agency that submits the document may approve it. (2) Individuals not employed by a state agency. An individual who is not employed by a state agency may not approve and may not be designated to approve a state agency's payment or USPS documents. (f) Who may approve payment and USPS documents. (1) Generally. Only an individual who is described in paragraph (2) or (4) of this subsection may approve a payment or USPS document. When this section refers to an individual approving a payment or USPS document without further qualification or description, the reference is only to an individual who may approve a payment or USPS document under this paragraph. (2) Individuals with inherent authority to approve payment and USPS documents. (A) The presiding officer of the governing body of a state agency may approve a payment or USPS document of the agency after: (i) the comptroller has received a signature card that complies with subsection (l) of this section; and (ii) the officer's security profile has been established according to: (I) USAS security's procedures and requirements if the approval is of a payment document; or (II) USPS security's procedures and requirements if the approval is of a USPS document. (B) This subparagraph applies only to a state agency that is headed by an elected or appointed state official. The agency's head of agency may approve a payment or USPS document of the agency after: (i) the comptroller has received a signature card that complies with subsection (l) of this section; and (ii) the head of agency's security profile has been established according to: (I) USAS security's procedures and requirements if the approval is of a payment document; or (II) USPS security's procedures and requirements if the approval is of a USPS document. (C) Notwithstanding subparagraphs (A)(ii) and (B)(ii) of this paragraph, a presiding officer or a head of agency may provide non-electronic approval of a payment or USPS document without establishing a security profile. This subparagraph applies only if the comptroller does not require the approval to be provided electronically. (3) USAS and USPS security profile changes. (A) This paragraph applies only when an individual ceases being either the presiding officer of a governing body or a head of agency. (B) The individual's security profile in USAS, if any, must be changed so that USAS no longer recognizes the individual's user identification number as belonging to an individual who has authority to approve payment documents. The individual's security profile in USPS, if any, must be changed so that USPS no longer recognizes the individual's user identification number as belonging to an individual who has authority to approve USPS documents. The changes must take effect not later than the date the individual ceases being the presiding officer or head of agency. (C) The security coordinator of the state agency with which the individual serves as presiding officer or head of agency is responsible for requesting the comptroller to change the individual's security profiles. (D) If the comptroller determines that a security coordinator has not complied with subparagraph (C) of this paragraph, then the comptroller may unilaterally change the security profiles. (E) This subparagraph applies to a payment or USPS document only if the comptroller determines that an individual approved the document after the individual ceased being a presiding officer or a head of agency. The comptroller may take any necessary steps to prevent a warrant from being issued or an electronic funds transfer from being initiated until the document is properly approved. If the comptroller is unable to prevent a warrant from being issued or an electronic funds transfer from being initiated, then the comptroller may take any necessary steps to prevent the warrant from being honored or to reverse the electronic funds transfer. The state agency whose payment or USPS document results in the warrant or electronic funds transfer shall cooperate fully with the comptroller. (4) Individuals without inherent authority but who may be designated to approve payment documents. An officer or employee of a state agency who does not have inherent authority to approve the agency's payment and USPS documents may be designated to approve those documents. A designation is valid only if it is made: (A) by someone with the authority to make designations; and (B) according to the procedures required by this section. (g) Who may designate individuals to approve payment and USPS documents. (1) State agencies headed by a governing body. (A) The governing body of a state agency may designate one or more individuals to approve its payment and USPS documents. (B) The governing body of a state agency may authorize the governing body's presiding officer or the agency's executive director, or both, to designate one or more individuals to approve the agency's payment and USPS documents. The presiding officer or executive director may make a designation only if the authorization is effective according to subsection (h)(1) of this section. (2) State agencies headed by an elected or appointed state official. (A) The head of agency of a state agency may designate one or more individuals to approve the agency's payment and USPS documents. (B) The head of agency of a state agency may authorize the agency's chief deputy to designate one or more individuals to approve the agency's payment and USPS documents. The chief deputy may make a designation only if the authorization is effective according to subsection (h)(2) of this section. (h) How to authorize individuals to designate other individuals to approve payment and USPS documents. (1) State agencies headed by a governing body. (A) The authorization of a presiding officer or executive director to designate individuals to approve payment and USPS documents is effective only after the comptroller has received proper written notice of the authorization. (B) Written notice to the comptroller is proper only if the notice satisfies the requirements of this subparagraph. (i) The notice must be: (I) a certified copy of the minutes of the meeting of the governing body during which it made the authorization; or (II) a letter, memorandum, or other writing. (ii) If the notice consists of a copy of the minutes, then the copy must be certified and signed by: (I) the presiding officer of the governing body; or (II) the member of the governing body who is responsible for keeping those minutes. (iii) If the notice is in the form of a letter, memorandum, or other writing, then it must be signed by the presiding officer of the governing body. (iv) The notice must state in substance that the governing body has authorized the presiding officer or executive director, as applicable, to designate individuals to approve the agency's payment and USPS documents. (v) The notice must state an effective date for the authorization. (C) The authorization of a presiding officer or executive director to designate individuals to approve payment and USPS documents may be of a named individual or, alternatively, anyone who holds the position of presiding officer or executive director. (i) If the comptroller receives notification that a governing body has authorized the "presiding officer" or the "executive director," then the body is deemed to have authorized whoever holds the position of presiding officer or executive director. (ii) If the comptroller receives notification that a governing body has authorized a named individual, then the body is deemed to have decided that its authorization terminates automatically upon the individual's leaving the position of presiding officer or executive director. (D) The authorization of a presiding officer or executive director may not be limited to designating individuals to approve only payment documents or only USPS documents. If the comptroller receives notification that a governing body has authorized the presiding officer or executive director to designate individuals to approve only one type of document, then the body is deemed to have authorized the designation of individuals to approve both types of documents. (2) State agencies headed by an elected or appointed state official. (A) The authorization of a chief deputy to designate individuals to approve payment and USPS documents is effective only after the comptroller has received proper written notice of the authorization. (B) Written notice to the comptroller is proper only if the notice: (i) contains the head of agency's original signature; (ii) states in substance that the head of agency has authorized the chief deputy to designate individuals to approve the agency's payment and USPS documents; and (iii) states an effective date for the authorization. (C) The authorization of a chief deputy to designate individuals to approve payment and USPS documents may be of a named individual or, alternatively, anyone who holds the position of chief deputy. (i) If the comptroller receives notification that a head of agency has authorized the "chief deputy," then the head of agency is deemed to have authorized whoever holds the position of chief deputy. (ii) If the comptroller receives notification that a head of agency has authorized a named individual, then the head of agency is deemed to have decided that the authorization terminates automatically upon the individual's leaving the position of chief deputy. (D) The authorization of a chief deputy may not be limited to designating individuals to approve only payment documents or only USPS documents. If the comptroller receives notification that a head of agency has authorized the chief deputy to designate individuals to approve only one type of document, then the head of agency is deemed to have authorized the designation of individuals to approve both types of documents. (i) How to revoke authorizations of individuals to designate other individuals to approve payment and USPS documents. (1) State agencies headed by a governing body. (A) The governing body of a state agency may revoke its authorization of a presiding officer or executive director to designate individuals to approve the agency's payment and USPS documents. (B) If a governing body revokes an authorization, then the body's presiding officer shall ensure that the comptroller receives written notice of the revocation not later than the tenth day after its effective date. (C) If the comptroller determines that an individual made a designation after the effective date of the revocation of the individual's authority to make designations, then the comptroller may not recognize the designation. (D) This subparagraph applies only if the governing body of a state agency has authorized a named individual to designate individuals to approve the agency's payment and USPS documents. (i) The comptroller shall stop recognizing the authorization of an individual who, at the time of the authorization, was the body's presiding officer if the comptroller determines that the individual no longer holds that position. (ii) The comptroller shall stop recognizing the authorization of an individual who, at the time of the authorization, was the agency's executive director if the comptroller determines that the individual no longer holds that position. (iii) A determination under clause (i) or (ii) of this subparagraph may be based on any information the comptroller deems credible. (E) A change in the membership of a governing body does not automatically revoke an authorization made by that body. Whether an authorization would be revoked automatically by the abolishment of a governing body, the wholesale substitution of one governing body for another, or the transfer of a state agency from the jurisdiction of one governing body to another would depend on the legislation enacting the abolishment, substitution, or transfer. (2) State agencies headed by an elected or appointed state official. (A) The head of agency of a state agency may revoke the authorization of a chief deputy to designate individuals to approve the agency's payment and USPS documents. The head of agency shall ensure that the comptroller receives written notice of the revocation not later than the tenth day after its effective date. If the comptroller determines that an individual made a designation after the effective date of the revocation of the individual's authority to make designations, then the comptroller may not recognize the designation. (B) This subparagraph applies only if the head of agency of a state agency has authorized a named individual to designate individuals to approve the agency's payment and USPS documents. The comptroller shall stop recognizing the authorization of an individual who, at the time of the authorization, was the chief deputy if the comptroller determines that the individual no longer holds that position. This determination may be based on any information the comptroller deems credible. (C) When an individual stops being the head of agency of a state agency, all authorizations made by that individual are revoked automatically. Whether an authorization would be revoked automatically by the transfer of a state agency from the jurisdiction of one head of agency to another would depend on the legislation enacting the abolishment, substitution, or transfer. (j) How to designate individuals to approve payment and USPS documents. (1) State agencies headed by a governing body. (A) An individual who has been designated to approve a state agency's payment and USPS documents may approve one of those documents if: (i) the comptroller has received proper written notice of the designation; (ii) the comptroller has received a signature card that complies with subsection (l) of this section; and (iii) the individual's security profile has been established according to: (I) USAS security's procedures and requirements if the approval is of a payment document; or (II) USPS security's procedures and requirements if the approval is of a USPS document. (B) Written notice to the comptroller is proper only if the notice satisfies the requirements of this subparagraph. (i) The notice must be: (I) a certified copy of the minutes of the meeting of the governing body during which it made the designation; or (II) a letter, memorandum, or other writing. (ii) If the notice consists of a copy of the minutes, then the copy must be certified and signed by: (I) the presiding officer of the governing body; or (II) the member of the governing body who is responsible for keeping those minutes. (iii) If the notice is in the form of a letter, memorandum, or other writing, then it must be signed by: (I) the presiding officer of the governing body if it made the designation; or (II) the individual who made the designation if the governing body did not. (iv) The notice must: (I) identify the governing body or individual who made the designation; (II) list the legal name of the designated individual; (III) state an effective date for the designation; and (IV) say in substance that the individual has been designated to approve payment and USPS documents. (C) Notwithstanding subparagraph (A)(iii) of this paragraph, an individual may provide non- electronic approval of a payment or USPS document without establishing a security profile. This subparagraph applies only if the comptroller does not require the approval to be provided electronically. (D) The designation of an individual to approve payment or USPS documents must be of a named individual. The designation may not be of just anyone who holds a particular office or position. If the comptroller receives notification that a particular office or position has been designated, then the designation will be deemed to have been of the individual who holds the office or position as of the date the designation is made. The comptroller's failure to specifically refuse to recognize the designation of an office or position does not constitute the comptroller's acceptance of the designation of the office or position. (E) The designation of an individual may not be limited to approving only payment documents or only USPS documents. If the comptroller receives notification that an individual has been designated to approve only one type of document, then the designation will be deemed to include approval of both types of documents. (2) State agencies headed by an elected or appointed state official. (A) An individual who has been designated to approve a state agency's payment and USPS documents may approve one of those documents if: (i) the comptroller has received proper written notice of the designation; (ii) the comptroller has received a signature card that complies with subsection (l) of this section; and (iii) the individual's security profile has been established according to: (I) USAS security's procedures and requirements if the approval is of a payment document; or (II) USPS security's procedures and requirements if the approval is of a USPS document. (B) Written notice to the comptroller is proper only if the notice: (i) is signed by the individual who made the designation; (ii) lists the legal name of the designated individual; (iii) says who made the designation; (iv) states an effective date for the designation; and (v) says in substance that the individual has been designated to approve payment and USPS documents. (C) Notwithstanding subparagraph (A)(iii) of this paragraph, an individual may provide non- electronic approval of a payment or USPS document without establishing a security profile. This subparagraph applies only if the comptroller does not require the approval to be provided electronically. (D) The designation of an individual to approve payment and USPS documents must be of a named individual. The designation may not be of just anyone who holds a particular office or position. If the comptroller receives notification that a particular office or position has been designated, then the designation will be deemed to have been of the individual who holds the office or position as of the date the designation is made. The comptroller's failure to specifically refuse to recognize the designation of an office or position does not constitute the comptroller's acceptance of the designation of the office or position. (E) The designation of an individual may not be limited to approving only payment documents or only USPS documents. If the comptroller receives notification that an individual has been designated to approve only one type of document, then the designation will be deemed to include approval of both types of documents. (k) How to revoke designations of individuals to approve payment and USPS documents. (1) State agencies headed by a governing body. (A) The governing body of a state agency may, at anytime, revoke the designation of an individual to approve the agency's payment and USPS documents, regardless of who made the designation. (B) This subparagraph applies only if a state agency's presiding officer is authorized to designate individuals to approve the agency's payment and USPS documents. The presiding officer may revoke the designation of an individual only if: (i) the presiding officer made the designation; (ii) an individual who previously held the position of presiding officer made the designation while holding that position; (iii) the agency's executive director made the designation; or (iv) an individual who previously held the position of executive director made the designation while holding that position. (C) This subparagraph applies only if a state agency's executive director is authorized to designate individuals to approve the agency's payment and USPS documents. The executive director may revoke the designation of an individual only if: (i) the executive director made the designation; or (ii) an individual who previously held the position of executive director made the designation while holding that position. (D) If the designation of an individual to approve payment and USPS documents is revoked, then the comptroller must receive written notification of the revocation not later than the tenth day after the revocation is made. The ten day period starts running when the revocation decision is made, not when the revocation takes effect. The notification must be provided by the presiding officer of a governing body if that body revoked the designation. Otherwise, the notification must be provided by the individual who revoked the designation. (E) A change in the membership of a state agency's governing body does not automatically revoke the body's designation of any individual to approve payment and USPS documents. Whether designations would be revoked automatically by the abolishment or creation of a governing body, the substitution of one governing body for another, or the transfer of a state agency from the jurisdiction of one governing body to another would depend on the legislation that enacts the change. (F) A notification to the comptroller under subparagraph (D) of this paragraph must satisfy the requirements of this subparagraph. (i) The notification must be: (I) a certified copy of the minutes of the meeting of the governing body during which it revoked the designation; or (II) a letter, memorandum, or other writing. (ii) If the notification consists of a copy of the minutes, then the copy must be certified and signed by: (I) the presiding officer of the governing body; or (II) the member of the governing body who is responsible for keeping those minutes. (iii) If the notification is in the form of a letter, memorandum, or other writing, then it must be signed by: (I) the presiding officer of the governing body if it revoked the designation; or (II) the individual who revoked the designation if the governing body did not. (iv) The notification must: (I) identify the governing body or individual who revoked the designation; (II) list the legal name of the individual whose designation is revoked; (III) state an effective date for the revocation; and (IV) say in substance that the individual's designation to approve payment and USPS documents is revoked. (2) State agencies headed by an elected or appointed state official. (A) The head of agency of a state agency may, at anytime, revoke the designation of an individual to approve the agency's payment and USPS documents, regardless of who made the designation. (B) This subparagraph applies only if a state agency's chief deputy is authorized to designate individuals to approve the agency's payment and USPS documents. The chief deputy may revoke the designation of an individual only if: (i) the chief deputy made the designation; or (ii) an individual who previously held the position of chief deputy made the designation while holding that position. (C) If the designation of an individual to approve payment and USPS documents is revoked, then the comptroller must receive written notification of the revocation not later than the tenth day after the revocation is made. The ten day period starts running when the revocation decision is made, not when the revocation takes effect. The notification must be provided by the individual who revoked the designation. (D) A change in a state agency's head of agency does not automatically revoke the head of agency's designation of any individual to approve payment and USPS documents. Whether designations would be revoked automatically by the transfer of a state agency from the jurisdiction of one head of agency to another would depend on the legislation that enacts the change. (E) A notification to the comptroller under subparagraph (C) of this paragraph must: (i) be signed by the individual who revoked the designation; (ii) identify the individual who revoked the designation; (iii) list the legal name of the individual whose designation is revoked; (iv) state an effective date for the revocation; and (v) say in substance that the individual's designation to approve payment and USPS documents is revoked. (3) Mandatory revocations because of termination of employment. (A) This paragraph applies to all state agencies. (B) When an individual terminates employment with a state agency, the individual's designation to approve the agency's payment and USPS documents ends on the effective date of the termination. Any officer or employee of the agency may notify the comptroller about the termination. Regardless of who provides the notification, the agency must ensure that the comptroller receives it not later than the fifth day after the effective date of the termination. (C) The comptroller shall stop recognizing the designation of an individual to approve a state agency's payment and USPS documents if the comptroller determines that the individual has terminated employment with the agency. This determination may be based on any information the comptroller deems credible. (4) Revocations by the comptroller. (A) This paragraph applies to all state agencies. (B) The comptroller may unilaterally revoke the designation of any individual to approve payment and USPS documents for any reason the comptroller deems appropriate. (5) USAS security profile changes. (A) If the designation of an individual to approve payment and USPS documents is revoked, then the individual's security profiles in USAS and USPS, if any, must be changed so that: (i) USAS no longer recognizes the individual's user identification number as belonging to an individual who has authority to approve payment documents; and (ii) USPS no longer recognizes the individual's user identification number as belonging to an individual who has authority to approve USPS documents. (B) A security profile change required by subparagraph (A) of this paragraph must take effect not later than the date the revocation takes effect. (C) The comptroller is responsible for changing the security profiles if the comptroller revoked the designation. Otherwise, the security coordinator of the state agency that revoked the designation is responsible. (D) If the comptroller determines that a security coordinator has not complied with subparagraph (C) of this paragraph, then the comptroller may unilaterally change the security profiles of the individual whose designation has been revoked. (6) Unauthorized approvals of payment and USPS documents. (A) This paragraph applies to a payment or USPS document only if the comptroller determines that an individual approved the document after the taking effect of the revocation of the individual's designation to approve payment and USPS documents. (B) The comptroller may take any necessary steps to prevent a warrant from being issued or an electronic funds transfer from being initiated until a payment or USPS document subject to this paragraph is properly approved. (C) If the comptroller is unable to prevent a warrant from being issued or an electronic funds transfer from being initiated, then the comptroller may take any necessary steps to prevent the warrant from being honored or to reverse the electronic funds transfer. The state agency whose payment or USPS document resulted in the warrant or electronic funds transfer shall cooperate fully with the comptroller in this regard. (l) Signature card requirements. (1) Presiding officers and heads of agency. A signature card submitted by a state agency concerning the approval of payment and USPS documents by the presiding officer of a governing body or by a head of agency is valid only if the card: (A) specifies the legal name, payee identification number, and position of the presiding officer or head of agency; (B) provides the presiding officer's or head of agency's user identification number, if the officer or head of agency has one; (C) contains the presiding officer's or head of agency's original signature; (D) specifies the agency's name and identification number; (E) provides a contact phone number for the agency; and (F) lists an effective date. (2) Designated individuals. A signature card submitted by a state agency concerning the designation of an individual to approve payment and USPS documents is valid only if the card: (A) specifies the designated individual's legal name, payee identification number, and position; (B) provides the designated individual's user identification number, if the individual has one; (C) contains the designated individual's original signature; (D) specifies the agency's name and identification number; (E) provides a contact phone number for the agency; and (F) lists an effective date that is the same as the date listed in the accompanying written notification. (m) Limitations adopted by state agencies concerning approval and designation authority. (1) Limitations on approval authority. The comptroller may not enforce a state agency's decision to limit an individual's approval authority to particular types of payment or USPS documents if the limit is stricter than required by state law and this section. Enforcement of that decision is solely the agency's responsibility. (2) Limitations on designation authority. The comptroller may not enforce a state agency's decision to limit a presiding officer's, executive director's, or chief deputy's authority to designate individuals to approve payment or USPS documents if the limit is stricter than required by state law and this section. Enforcement of that decision is solely the agency's responsibility. (n) Signature card and notification forms adopted by the comptroller. (1) Adoption of forms. The comptroller may adopt one or more forms to facilitate compliance with the signature card and written notice and notification requirements of this section. (2) Use of forms. If the comptroller adopts a form under paragraph (1) of this subsection, then a state agency must use the form to comply with the requirements of this section to the extent the comptroller intends the form to be used for that purpose. (o) How electronic approvals of payment and USPS documents are provided. (1) Release of payment documents into USAS for processing. (A) A state agency may request USAS to process a batch of the agency's payment documents only by releasing the batch on-line according to this section and the procedures adopted by the comptroller. (B) A batch that a state agency has released must be released again by the agency if: (i) a transaction within the batch is altered after its original release; or (ii) a transaction is added to the batch after its original release. (C) An individual may approve a payment document only if: (i) the individual begins an on-line session in USAS by entering the individual's user identification number and password; and (ii) USAS determines that the user identification number and password belong to an individual who USAS recognizes as authorized to approve the agency's payment documents. (D) USAS recognizes an individual as authorized to release a state agency's payment documents only if the comptroller has given the individual the necessary security to release those documents. (E) A state agency that wants an individual to have release capabilities for the agency's payment documents must properly request necessary security for the individual from the comptroller. The comptroller will grant the request only if the comptroller determines that the individual: (i) has inherent authority to approve payment documents and the requirements of subsection (f)(2) of this section have been satisfied; or (ii) the individual has been designated to approve the agency's payment documents, the requirements of subsection (j) of this section have been satisfied, and the individual's designation has not been revoked according to subsection (k) of this section. (2) Legal significance of releasing batches of payment documents into USAS for processing. (A) The on-line release of a batch of payment documents into USAS for processing constitutes the electronic approval of all those documents. (B) An individual who releases a batch of payment documents into USAS for processing is responsible for the truth and accuracy of the following statement with respect to each payment document and transaction in the batch: "I approve each purchase, travel, and payroll document in this batch. Employees at my state agency have determined that each document complies with applicable law, including the General Appropriations Act (GAA) and the rules of the comptroller of public accounts. For each purchase or travel document, employees at my state agency have determined that: (1) the goods and services covered by the document comply with the requirements of the contracts under which they were purchased; and (2) the invoices for the goods and services are correct. For each transaction included in a travel document, employees at my state agency have determined that the information included in the transaction has been approved by the claimant. For each payroll document, employees at my state agency have determined that: (1) the payroll is correct and unpaid; and (2) any salary supplementation report required by the GAA to be filed with the comptroller of public accounts and the secretary of state has been filed. My state agency has authorized me to make this statement for the agency, and I accept responsibility for it." An individual who does not want to be responsible for this statement about a batch may not release the batch. An individual may not both release a batch and avoid responsibility for the statement. (C) The chief fiscal officer of a state agency shall ensure that each individual who is authorized or designated to approve the agency's payment documents understands this paragraph. The agency's executive director or head of agency, as applicable, shall ensure that the chief fiscal officer satisfies this requirement. However, the failure of the chief fiscal officer, the executive director, or the head of agency to comply with a requirement of this subparagraph does not relieve any individual from responsibility for the truth and accuracy of the statement in subparagraph (B) of this paragraph. (D) A state agency may not adopt a policy, procedure, or rule that conflicts with this paragraph. (3) Release of USPS documents into USPS for processing. (A) A state agency may request USPS to process a batch of the agency's USPS documents only by releasing the batch on-line according to this section and the procedures adopted by the comptroller. (B) A batch that a state agency has released must be released again by the agency if: (i) a transaction within the batch is altered after its original release; or (ii) a transaction is added to the batch after its original release. (C) An individual may approve a USPS document only if: (i) the individual begins an on-line session in USPS by entering the individual's user identification number and password; and (ii) USPS determines that the user identification number and password belong to an individual who USPS recognizes as authorized to approve the agency's USPS documents. (D) USPS recognizes an individual as authorized to release a state agency's USPS documents only if the comptroller has given the individual the necessary security to release those documents. (E) A state agency that wants an individual to have release capabilities for the agency's USPS documents must properly request necessary security for the individual from the comptroller. The comptroller will grant the request only if the comptroller determines that the individual: (i) has inherent authority to approve USPS documents and the requirements of subsection (f)(2) of this section have been satisfied; or (ii) the individual has been designated to approve the agency's USPS documents, the requirements of subsection (j) of this section have been satisfied, and the individual's designation has not been revoked according to subsection (k) of this section. (4) Legal significance of releasing batches of USPS documents into USPS for processing. (A) The on-line release of a batch of USPS documents into USPS for processing constitutes the electronic approval of all those documents. (B) An individual who releases a batch of USPS documents into USPS for processing is responsible for the truth and accuracy of the following statement with respect to each document and transaction in the batch: "I approve each document in this batch. Employees at my state agency have determined that each document complies with applicable law, including the General Appropriations Act (GAA) and the rules of the comptroller of public accounts. For each document that involves the payment of compensation to a state officer or employee, employees at my state agency have determined that: (1) the payroll is correct and unpaid; and (2) any salary supplementation report required by the GAA to be filed with the comptroller of public accounts and the secretary of state has been filed. For each document that does not involve the payment of compensation to a state officer or employee, employees at my state agency have determined that: (1) the goods and services covered by the document comply with the requirements under which they were purchased; and (2) the invoices for the goods or services are correct. For each transaction that involves the reimbursement of a meal expense incurred during non-overnight travel, employees at my state agency have determined that the information included in the transaction has been approved by the claimant. My state agency has authorized me to make this statement for the agency, and I accept responsibility for it." An individual who does not want to be responsible for this statement about a batch may not release the batch. An individual may not both release a batch and avoid responsibility for the statement. (C) The chief fiscal officer of a state agency shall ensure that each individual who is authorized or designated to approve the agency's USPS documents understands this paragraph. The agency's executive director or head of agency, as applicable, shall ensure that the chief fiscal officer satisfies this requirement. However, the failure of the chief fiscal officer, the executive director, or the head of agency to comply with a requirement of this subparagraph does not relieve any individual from responsibility for the truth and accuracy of the statement in subparagraph (B) of this paragraph. (D) A state agency may not adopt a policy, procedure, or rule that conflicts with this paragraph. (5) Disclosure of user identification numbers and passwords. An individual may not disclose the individual's user identification number or password, or both, to any individual or entity. Therefore, an individual may not authorize another individual to release a batch of payment or USPS documents by using the first individual's user identification number and password. The Penal Code, sec.33.02(b) criminalizes the intentional or knowing disclosure of a password or personal identification number to an individual or entity without the effective consent of the computer owner. (p) Non-electronic approvals of paper payment documents. (1) Special definition. In this subsection, "payment document" means only a paper payment document. (2) General requirements. A state agency may provide non-electronic approval of a payment document only if the comptroller consents to that approval method. (3) Requirements of other subsections. In addition to this subsection, subsections (a)-(o) of this section govern all aspects of non-electronic approvals of payment documents, with the exceptions specified in those subsections. (4) Method for providing approvals. (A) The non-electronic approval of a payment document must be provided through the original signature of an individual who is authorized or designated to approve the document. (B) An individual's original signature on a payment document is a valid approval of that document only if the signature matches the individual's signature on the appropriate signature card or, if adopted by the comptroller, on the form used in lieu of signature cards. (5) Reapprovals. If a payment document is altered in any manner after an individual has properly approved the document, then the document must be properly approved again. (q) Non-electronic approvals of payment documents submitted to USAS electronically and of USPS documents. (1) Special definition. In this subsection, "payment document" means only a payment document that is submitted to USAS electronically. (2) General requirements. A state agency may provide non-electronic approval of a payment or USPS document only if the comptroller consents to that approval method. (3) Requirements of other subsections. In addition to this subsection, subsections (a)-(o) of this section govern all aspects of non-electronic approvals of payment and USPS documents, with the exceptions specified in those subsections. (4) Method for providing approvals. (A) The non-electronic approval of a payment or USPS document must be provided through the original signature of an individual who is authorized or designated to approve the document. (B) An individual's original signature on a payment or USPS document is a valid approval of that document only if the signature matches the individual's signature on the appropriate signature card or, if adopted by the comptroller, on the form used in lieu of signature cards. (5) Reapprovals. If a payment or USPS document is altered in any manner after an individual has properly approved the document, then the document must be properly approved again. (6) When the release of a payment or USPS document does not constitute approval of that document. (A) If the comptroller has consented to the contract, a state agency may contract with an individual not employed by the agency or with another entity to: (i) release the agency's payment documents into USAS for processing; (ii) release the agency's USPS documents into USPS for processing; or (iii) release the agency's payment documents into USAS for processing and the agency's USPS documents into USPS for processing. (B) The release of a payment or USPS document under subparagraph (A) of this paragraph does not constitute approval of the document. The document may be approved only according to paragraph (4) of this subsection. (C) The comptroller may consent to a contract described by subparagraph (A) of this paragraph if: (i) the comptroller is satisfied that the state agency whose payment or USPS documents are being released has statutory authority to enter into the contract; (ii) the comptroller is satisfied that the state agency, if any, that will be releasing the payment or USPS documents has statutory authority to enter into the contract; (iii) the contract is in writing; (iv) the comptroller is satisfied that the agency whose payment or USPS documents are being released has established an internal system for properly authorized or designated individuals to approve those documents before their release according to paragraph (4) of this subsection; (v) the comptroller is satisfied that approvals under the internal system described in clause (iv) of this subparagraph can be verified easily by the comptroller and the individual or entity that releases the payment or USPS documents; (vi) before an individual or entity releases a payment or USPS document, the contract requires the individual or entity to verify that the approval methods described in paragraph (4) of this subsection have been followed; (vii) the individual or entity has entered into a contract with the comptroller that obligates the individual or entity to comply with the requirements of this paragraph, if the comptroller determines the contract is necessary; (viii) the agency whose payment or USPS documents are being released has agreed in its post- payment contract, if any, with the comptroller that the release of those documents into USAS or USPS, as applicable, does not constitute approval of the document; and (ix) the comptroller is satisfied that the security provided under the contract is at least equivalent to the security that would exist if the agency released its own payment or USPS documents. (D) The burden of demonstrating that a state agency has statutory authority to enter into a contract described in subparagraph (A) of this paragraph is with the agency. The comptroller may require the submission of whatever information and legal arguments the comptroller deems necessary to satisfy the comptroller that the authority exists. (E) The comptroller must be kept informed about who is authorized to release the payment or USPS documents of a state agency that has entered into a contract described in subparagraph (A) of this paragraph. The authorized individuals may not appear on the agency's signature cards or, if adopted by the comptroller, the form used in lieu of the cards. The officer or employee of the agency who has the authority to enter into accounting services contracts is responsible for complying with this subparagraph. 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. Filed with the Office of the Secretary of State on January 13, 1998. TRD-9800487 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: February 2, 1998 Proposal publication date: December 5, 1997 For further information, please call: (512) 463-4062 CHAPTER 9.Property Tax Administration SUBCHAPTER A.Practice and Procedure 34 TAC sec.9.17 The Comptroller of Public Accounts adopts an amendment to sec.9.17, concerning notice of public hearing on tax increase, without changes to the proposed text as published in the November 14, 1997, issue of the Texas Register (22 TexReg 11053). This section is being amended to provide for changes to the model form for notice of public hearing on tax increase from Senate Bill 841, 75th Legislature, 1997, effective January 1, 1998, and to change the form number to conform with the comptroller form numbering system. No comments were received regarding adoption of the amended section. This amendment is adopted under the Tax Code, sec.26.06(g), which requires the comptroller to adopt rules prescribing the language and format to be used in the part of the notice required by sec.26.06(b)(2). The amendment implements the Tax Code, sec.26.06. 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. Filed with the Office of the Secretary of State on January 14, 1998. TRD-9800623 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: February 3, 1998 Proposal publication date: November 14, 1997 For further information, please call: (512) 463-3699 SUBCHAPTER C.Appraisal District Administration 34 TAC sec.9.402 The Comptroller of Public Accounts adopts an amendment to sec.9.402, concerning special use application forms, without changes to the proposed text as published in the November 14, 1997, issue of the Texas Register (22 TexReg 11054). This rule is being amended to provide for changes to the model form for open- space land application resulting from House Bill 1723, 75th Legislature, 1997, effective September 1, 1997; and to change the model form numbers to conform with the comptroller form numbering system, to reflect a Texas Supreme Court decision, and to conform notice of penalty for filing an application making a false statement. No comments were received regarding adoption of the amended section. This amendment is adopted under the Tax Code, sec.sec.23.57, 23.75, 23.84, and 23.94, which require the comptroller to prescribe the contents and form for the application for a person claiming that his land is eligible for appraisal as provided by these subchapters. The amendment implements the Tax Code, sec.23.59. 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. Filed with the Office of the Secretary of State on January 14, 1998. TRD-9800624 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: February 3, 1998 Proposal publication date: November 14, 1997 For further information, please call: (512) 463-3699 34 TAC sec.9.415 The Comptroller of Public Accounts adopts an amendment to sec.9.415, concerning applications for property tax exemptions, with changes to the proposed text as published in the November 7, 1997, issue of the Texas Register (22 TexReg 10906). This amendment makes the rule conform to current agency practice and is easier to use. In addition, the rule is being amended to add a new model form for community housing development organizations improving property for low-income and moderate-income housing from House Bill 137, 75th Legislature, 1997, effective January 1, 1998; to amend the model forms for additional explanatory language from House Bill 137, House Bill 1145, House Bill 1773, House Bill 2383, Senate Bill 95, Senate Bill 344, Senate Bill 841, and Senate Bill 1437, 75th Legislature, 1997; and to change the form numbers to conform with the comptroller form numbering system. An appraisal district commented that subsection (a) should not require an appraisal district to list every taxing unit and homestead exemption they offer on the form or in an attached list, but should give the appraisal districts the option of asking property owners to call the appraisal district if they have questions about the homestead exemptions offered by their taxing units. Since this is not a new requirement, the comptroller declines to delete the subsection, but will add the option to call the appraisal district to the subsection and to the Residential Homestead Exemption application. One appraisal district commented that the comptroller should require the Residential Homestead Exemption application to be notarized. The comptroller disagrees that a notarization is necessary because the form requires each applicant to swear that they understand the penalty for falsifying an application. Consequently, the comptroller did not make the change. Comments were received from two chief appraisers requesting that a box for the year of the application be added to the Residential Homestead Exemption application. The comptroller agrees and has added a box in the top right corner of the form. One chief appraiser commented that the line in the Residential Homestead Exemption application for a driver's licence number or other identifying information, and the birth date be moved to below the city, state, zip and phone number line, so that pre-printed address label could be used. The comptroller has changed the form so that the identification information is after the address lines. Another chief appraiser asked that the Residential Homestead Exemption application include a request for a Texas voter's registration number if the homeowner is a non-driver and other supporting documents, such as vehicle registration and vehicle insurance to prove Texas residency and for the directions to include such information. Senate Bill 841 requires that all comptroller's model exemption applications contain a space for one of the following three numbers -- Texas driver's license number, personal identification number, or Social Security number. No other identifying information is required. Therefore, the comptroller did not make the change. A tax assessor-collector and a county appraisal district had comments regarding the wording in Step 3, the Residential Homestead Exemption application. The comptroller has changed the general residential exemption to read "... (2) you occupied it as your principal residence on January 1; and (3) you or your spouse have not claimed a residence homestead exemption on any other property;" to clarify that a person must occupy the homestead residence on January 1 and that if one spouse owns separate property and is claiming a homestead exemption, the other spouse may not claim another homestead exemption. A chief appraiser commented regarding Step 5, the Residential Homestead Exemption application. The commenter suggested adding two blank lines for applicants to indicate if they are applying for prior tax years. The form as proposed has a space for the homeowner to check if the application is for a prior year and states the filing deadlines for claiming an exemption for a prior year. The comptroller believes the form as proposed is clearer than it would be if the changes requested were made. To avoid confusion, the comptroller declines to make the suggested change. A couple of appraisal districts had some comments regarding minor grammatical corrections and clarification changes on the Residential Homestead Exemption application. Where possible, the comptroller agrees to make the suggested changes. Comments were received from a chief appraiser suggesting the addition of space at the top of the Supplemental Application for Charitable Organizations Improving Property for Low-Income Housing Property Exemption and the Supplemental Application for Community Housing Development Organizations Improving Property for Low-Income and Moderate-Income Housing Property Exemption for the applicant to indicate the tax year for which the exemption is claimed. The comptroller agrees and has made the change. A chief appraiser comment requested adding Articles of Incorporation as one of the documents to be attached to the Application for Religious Organization. The comptroller declined to make the change because the Tax Code does not require these documents to be attached to the initial application. Another comment from a chief appraiser requested a space be added to fill in account number/legal description for each exemption application. The comptroller has changed each exemption application, except those for Goods Exported from Texas (freeport application), Application for Property Tax Abatement Exemption and Application for Pollution Control Property, because these forms already had included this space. The change includes a space for legal description and language that a person completing the application may include the account number as an optional number, since the account number may not always be readily available to the person completing the application. This amendment is adopted under the Tax Code, sec.11.43(f), which requires the comptroller to prescribe the contents and form for each kind of property tax exemption. The amendment implements the Tax Code, sec.sec.11.111, 11.13, 11.17, 11.18, 11.181, 11.19, 11.20, 11.21, 11.22, 11.23(a)-(k), 11.24, 11.251, 11.27, 11.271, 11.28, 11.29, 11.30, 11.31, 11.437, and 11.182. sec.9.415.Applications for Property Tax Exemptions. (a) With the application for exemption for residence homesteads (Form 50-114), the appraisal office shall: (1) provide a list of taxing units served by the appraisal district, together with all residential homestead exemptions each offers; or, (2) provide the appraisal district's name and appraisal district's phone number on the form, with an instruction that the property owner may call the appraisal district to determine what homestead exemptions are offered by the property owner's taxing units. (b) If the chief appraiser learns of the death of a person qualified for over-65 homestead exemptions (Tax Code, sec.11.13) and it appears that the person's spouse has acquired ownership of the homestead, the chief appraiser should require the surviving spouse to file a new homestead exemption application. Based on the information provided in the new application, the chief appraiser shall determine whether the surviving spouse qualifies for homestead exemptions, including over-65 exemptions, and whether the surviving spouse may retain the tax ceiling for school tax purposes established on the homestead by the decedent. (c) The amended model forms in paragraphs (1)-(20) of this section and the new model forms in paragraph (21) of this section are adopted by reference by the Comptroller of Public Accounts. Copies of these forms are available for inspection at the office of the Texas Register or can be obtained from the Comptroller of Public Accounts, Property Tax Division, P.O. Box 13528, Austin, Texas 78711-3528. Copies may also be requested by calling our toll-free number 1-800-252-9121. In Austin, call (512) 305-9999. From a Telecommunications Device for the Deaf (TDD), call 1-800-248-4099, toll free. In Austin, the local TDD number is (512) 463-4621. (1) Application for Transitional Housing Property Tax Exemption (Form 50-140); (2) Application for Residence Homesteads (Form 50-114); (3) Application for Cemetery Exemption (Form 50-120); (4) Application for Charitable Organizations (Form 50-115); (5) Application(s) for Charitable Organization Providing Low-Income Housing (Form 50-242 and Form 50-243); (6) Application for Youth Spiritual, Mental, and Physical Development Organizations (Form 50- 118); (7) Application for Religious Organizations (Form 50-117); (8) Application for Privately Owned Schools (Form 50-119); (9) Application for Disabled Veteran's or Survivor's Exemption (Form 50-135); (10) Application for Miscellaneous Property Tax Exemptions (Form 50-128); (11) Application for Theater School Property Tax Exemption (Form 50-125); (12) Application for Historic Sites Property Tax Exemption (Form 50-122); (13) Application for Goods Exported from Texas (freeport exemption) (Form 50- 113); (14) Application for Solar and Wind-Powered Energy Device Exemption (Form 50- 123); (15) Application for Property Tax Abatement Exemption (Form 50-116); (16) Application for Stored Offshore Drilling Rig Exemption (Form 50-124); (17) Application for Dredge Disposal Site Exemption (Form 50-121); (18) Application for Nonprofit Water Supply or Wastewater Services Corporation (Form 50-214); (19) Application for Pollution Control Property (Form 50-248); (20) Application for Cotton Stored in a Warehouse (Form 50-245); and (21) Application(s) for Community Housing Development Organizations Improving Property for Low-Income and Moderate-Income Housing (Form 50-263 and Form 50- 264). 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. Filed with the Office of the Secretary of State on January 12, 1998. TRD-9800460 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: February 2, 1998 Proposal publication date: November 7, 1997 For further information, please call: (512) 463-3699 SUBCHAPTER D.Appraisal Review Board 34 TAC sec.9.803 The Comptroller of Public Accounts adopts new sec.9.803, concerning requirements for appraisal review board records, without changes to the proposed text as published in the November 21, 1997, issue of the Texas Register (22 TexReg 11289). The new rule replaces 34 TAC sec.9.5141, concerning the same subject matter, which is being repealed in order that it can be adopted under Title 34, Part I, Chapter 9, Subchapter D. The new rule conforms to current agency practice, is easier to use, and reflects statutory changes resulting from Senate Bill 772, 72nd Legislature, 1991, effective September 1, 1991; Senate Bill 642, 74th Legislature, 1995, effective January 1, 1996; House Bill 2201, 75th Legislature, 1997, effective May 21, 1997; and Senate Bill 841, 75th Legislature, 1997, effective January 1, 1998. No comments were received regarding adoption of the new section. This new section is adopted under the Tax Code, sec.41.68, which requires the comptroller to prescribe the form and manner in which the appraisal review board shall keep a record of its proceedings. The new section implements the Tax Code, sec.sec.25.25, 41.44(b), 41.45(d), 41.66, 41.68, 42.06, and 42.08. 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. Filed with the Office of the Secretary of State on January 14, 1998. TRD-9800632 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: February 3, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 463-3699 SUBCHAPTER H.Tax Record Requirements 34 TAC sec.9.3015 The Comptroller of Public Accounts adopts an amendment to sec.9.3015, concerning the report of decreased value forms, without changes to the proposed text as published in the November 14, 1997, issue of the Texas Register (22 TexReg 11054). This rule is being amended to provide for changes in the requirements for report of decreased value forms from House Bill 1879 and Senate Bill 841, 75th Legislature, 1997, effective September 1, 1997 and January 1, 1998, respectively. No comments were received regarding adoption of the amended section. This amendment is adopted under the Tax Code, sec.22.24, which requires the comptroller to prescribe and approve appropriate forms for filing a rendition or report. The amendment implements the Tax Code, sec.sec.22.03, 22.23, 22.24, and 22.27. 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. Filed with the Office of the Secretary of State on January 14, 1998. TRD-9800625 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: February 3, 1998 Proposal publication date: November 14, 1997 For further information, please call: (512) 463-3699 34 TAC sec.9.3031 The Comptroller of Public Accounts adopts an amendment to sec.9.3031, concerning rendition forms, without changes to the proposed text as published in the November 21, 1997, issue of the Texas Register (22 TexReg 11290). This rule is being amended to add sworn statement language to the model forms for renditions as required by House Bill 1879 and Senate Bill 841, 75th Legislature, 1997, effective September 1, 1997; to clarify that persons required to report inventory through an alternative method are not required to render that property; and to change the form numbers to conform with the comptroller form numbering system. A chief appraiser commented requesting a space for the appraisal district name on the top of the Renditions of Real Property Inventory form. The comptroller agrees and has made the change. This amendment is proposed under the Tax Code, sec.22.24, which requires the comptroller to prescribe and approve appropriate forms for filing a rendition or report. The amendment implements the Tax Code, sec.22.24 and sec.22.27. 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. Filed with the Office of the Secretary of State on January 13, 1998. TRD-9800507 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: February 2, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 463-3699 34 TAC sec.9.3038 The Comptroller of Public Accounts adopts an amendment to sec.9.3038, concerning current, delinquent, and special valuation rollback tax bills or statements, without changes to the proposed text as published in the November 14, 1997, issue of the Texas Register (22 TexReg 11055). This rule is being amended to provide for the addition of the name and telephone number of the assessor for the taxing unit and, if different, of the collector from Senate Bill 841, 75th Legislature, 1997, effective January 1, 1998. No comments were received regarding adoption of the amended section. This amendment is adopted under the Tax Code, sec.5.07, which requires the comptroller to prescribe the contents and form for the administration of the property tax system. The amendment implements the Tax Code, sec.31.01 and sec.33.04. 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. Filed with the Office of the Secretary of State on January 14, 1998. TRD-9800626 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: February 3, 1998 Proposal publication date: November 14, 1997 For further information, please call: (512) 463-3699 34 TAC sec.9.3042 The Comptroller of Public Accounts adopts an amendment to sec.9.3042, concerning request forms for separate or joint taxation, without changes to the proposed text as published in the November 14, 1997, issue of the Texas Register (22 TexReg 11056). This rule is being amended to provide for the exclusion of mineral interests having a taxable value less than $500 from joint listing on an ad valorem tax appraisal roll of separate interests in minerals in place as required by Senate Bill 485, 75th Legislature, 1997, effective January 1, 1998 and to add model forms. No comments were received regarding adoption of the amended section. This amendment is adopted under the Tax Code, sec.5.03, which requires the comptroller to adopt rules establishing minimum standards for the administration and operation of an appraisal district and Tax Code, sec.5.07, which requires the comptroller to prescribe the contents and form for the administration of the property tax system. The amendment implements the Tax Code, sec.sec.25.10, 25.11, and 25.12. 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. Filed with the Office of the Secretary of State on January 14, 1998. TRD-9800627 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: February 3, 1998 Proposal publication date: November 14, 1997 For further information, please call: (512) 463-3699 34 TAC sec.9.3055 The Comptroller of Public Accounts adopts the repeal of sec.9.3055, concerning public notice of protest and appeal procedures, without changes to the proposed text as published in the November 14, 1997, issue of the Texas Register (22 TexReg 11057). The rule is being repealed in order to combine the information in this rule into new 34 TAC sec.9.3064. The new rule will make it easier for persons affected by these rules to read and interpret them. No comments were received regarding adoption of the repeal. This repeal is adopted under the Tax Code, sec.111.002 and sec.111.0022, which provides the comptroller with the authority to adopt rules for the administration and enforcement of the Tax Code and programs or functions assigned to the comptroller by law. The repeal implements the Tax Code, sec.41.41 and sec.41.70. 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. Filed with the Office of the Secretary of State on January 14, 1998. TRD-9800628 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: February 3, 1998 Proposal publication date: November 14, 1997 For further information, please call: (512) 463-3699 34 TAC sec.9.3064 The Comptroller of Public Accounts adopts new sec.9.3064, concerning public notice of protest and appeal forms, without changes to the proposed text as published in the November 14, 1997, issue of the Texas Register (22 TexReg 11057). The new rule is being adopted to make the rules conform to current agency practice and easier to use, and to provide information regarding evening and weekend hearings as required by Senate Bill 841, 75th Legislature, 1997, effective January 1, 1998; the publication of the right to protest as required by Senate Bill 93, 75th Legislature, 1997, effective January 1, 1998; and to change the form numbers to conform with the comptroller form numbering system. No comments were received regarding adoption of the new section. This new section is adopted under the Tax Code, sec.41.70, which requires the comptroller to adopt rules establishing minimum standards for the form and content of the notice and Tax Code sec.5.07, which requires the comptroller to prescribe the contents and form for the administration of the property tax system. The new section implements the Tax Code, sec.41.41 and sec.41.70. 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. Filed with the Office of the Secretary of State on January 14, 1998. TRD-9800629 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: February 3, 1998 Proposal publication date: November 14, 1997 For further information, please call: (512) 463-3699 SUBCHAPTER I.Validation Procedures 34 TAC sec.9.4033 The Comptroller of Public Accounts adopts an amendment to sec.9.4033, concerning the allocation of value, without changes to the proposed text as published in the November 14, 1997, issue of the Texas Register (22 TexReg 11058). This rule is being amended to provide for changes to the model forms for allocation of value from Senate Bill 841, 75th Legislature, 1997, effective January 1, 1998. No comments were received regarding adoption of the amended section. This amendment is adopted under the Tax Code, sec.5.03, which requires the comptroller to adopt rules establishing minimum standards for the administration and operation of an appraisal district, the Tax Code, sec.5.07, which requires the comptroller to prescribe the contents of forms for the administration of the property tax system and the Tax Code, sec.22.24, which requires the comptroller to prescribe and approve appropriate forms for filing a rendition or report. The amendment implements the Tax Code, sec.sec.21.02, 21.021, 21.03, 21.031, 21.05, 22.23, and 22.24. 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. Filed with the Office of the Secretary of State on January 14, 1998. TRD-9800630 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: February 3, 1998 Proposal publication date: November 14, 1997 For further information, please call: (512) 463-3699 SUBCHAPTER J.Procedures 34 TAC sec.9.5141 The Comptroller of Public Accounts adopts the repeal of sec.9.5141, concerning appraisal review board record requirement, without changes to the proposed text as published in the November 21, 1997, issue of the Texas Register (22 TexReg 11291). The rule is being repealed in order to combine the information in this rule into new 34 TAC sec.9.803. The new rule will make it easier for persons affected by these rules to read and interpret them. No comments were received regarding adoption of the repeal. This repeal is adopted under the Tax Code, sec.111.002 and sec.111.0022, which provides the comptroller with the authority to adopt rules for the administration and enforcement of the Tax Code and programs or functions assigned to the comptroller by law. The repeal implements the Government Code, sec.sec.25.25, 41.44(b), 41.45(d), 41.66, 41.68, and 42.06. 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. Filed with the Office of the Secretary of State on January 14, 1998. TRD-9800631 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: February 3, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 463-3699 TITLE 40. SOCIAL SERVICES AND ASSISTANCE PART II. Texas Rehabilitation Commission CHAPTER 110.Legal Services 40 TAC sec.110.1 The Texas Rehabilitation Commission adopts new sec.110.1, concerning legal services without changes to the proposed text as published in the December 12, 1997, issue of the Texas Register (22 TexReg 12255) and will not be republished. The section is adopted to establish a collections procedure for the Texas Rehabilitation Commission. No comments were received regarding adoption of the new rule. The new section is adopted under the Texas Human Resources Code, Title 7, Chapter 111, sec.111.018 and sec.111.023, which provides the Texas Rehabilitation Commission with the authority to promulgate rules consistent with Title 7, Texas Human Resources Code. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on January 12, 1998. TRD-9800431 Charles Schiesser Chief of Staff Texas Rehabilitation Commission Effective date: February 2, 1998 Proposal publication date: December 12, 1997 For further information, please call: (512) 424-4152 PART III. Texas Commission on Alcohol and Drug Abuse CHAPTER 141.General Provisions 40 TAC sec.sec.141.1-141.6, 141.8-141.14, 141.31, 141.33, 141.34, 141.41, 141.51, 141.61 The Texas Commission on Alcohol and Drug Abuse adopts the repeal of sec.sec.141.1-141.6, 141.8-141.14, 141.31, 141.33, 141.34, 141.41, 141.51, and 141.61 concerning general provisions related to the commission, without changes to the proposed text as published in the November 21, 1997 issue of the Texas Register (22 TexReg 11314). These rules are repealed to eliminate redundant rules that reiterate statutory provisions and rules that do not reflect current practice. The repeal of these rules also allows reorganization of the remaining provisions of the chapter. These sections describe the origin of the commission, commission composition and officers, the purpose of the commission, authority to accept funds, organization for chemical dependency services, relation to other agencies and endorsements, advisory councils, commission meetings, public comment and requests, minutes and recordings, commissioner travel and expense reimbursement, signature authority, historically underutilized business programs, approval of budgets and receipt of funds, policies of the commission, commission records, nondiscrimination in employment and funding, and general authority to accept donations. Related terms are also defined. No comments were received regarding the adoption of the repeal. The repeals are adopted under the Texas Health and Safety Code, sec.461.012(15), which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules governing the functions of the commission, including rules that prescribe the policies and procedures followed by the commission in administering any commission programs. The code affected by the repealed sections is the Texas Health and Safety Code, Chapter 461. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800693 Mark S. Smock Deputy for Finance and Administration Texas Commission on Alcohol and Drug Abuse Effective date: February 5, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 349-6609 40 TAC sec.sec.141.11, 141.21, 141.31 The Texas Commission on Alcohol and Drug Abuse adopts new sec.sec.141.11, 141.21, and 141.31 concerning public comment, advisory councils, and approval authority, without changes to the proposed text as published in the November 21, 1997 issues of the Texas Register (22 TexReg 11315). These rules are adopted to update provisions, which are adopted for repeal. These sections describe provisions for public comment at commission meetings, establish Regional Advisory Consortia and the Multicultural Affairs Advisory Council, and specify signature authority and budget approval authority. No comments were received regarding adoption of the new sections. These sections are adopted under the Texas Health and Safety Code, sec.461.012(15), which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules governing the functions of the commission, including rules that prescribe the policies and procedures followed by the commission in administering any commission programs. The code affected by the new sections is the Texas Health and Safety Code, Chapter 461. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800694 Mark S. Smock Deputy for Finance and Administration Texas Commission on Alcohol and Drug Abuse Effective date: February 5, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 349-6609 CHAPTER 145.Faith Based Chemical Dependency Programs 40 TAC sec.sec.145.11, 145.21-145.25 The Texas Commission on Alcohol and Drug Abuse adopts new sec.sec.145.11 and 145.21-145.25 concerning faith-based chemical dependency treatment programs. Sections 145.11 and 145.23 are adopted with changes to the proposed text as published in the September 26, 1997 issue of the Texas Register (22 TexReg 9647). Sections 145.21, 145.22, 145.24, and 145.25 are adopted without changes to the proposed text and will not be republished. These rules define terms used in the chapter, create an exemption from facility licensure for faith-based chemical dependency treatment programs, provide for the registration of these programs with the commission, establish requirements regarding admission and advertisement, and describe provisions for revocation of the exemption. In sec.145.11, the definition of medical care has been revised and the definition of site has been deleted. The requirement for a client to be medically and physically stable has been removed from sec.145.23. The rules are adopted to implement new provisions of Texas Health and Safety Code, sec.sec.464.51- 464.61, which were adopted during the 75th session of the Texas Legislature. The commission received comments from the Texas Justice Foundation, the National Center for Neighborhood Enterprise, the Institute for Justice and several individuals, which are summarized below. Comment: Section 145.23(a) allowing an exempt program only to admit individuals who are mentally and physically stable departs from the statute. The very nature of chemical dependency makes it very difficult to determine if clients are mentally and physically stable. The proposed regulation would, in effect, require a program to provide medical care (because medical care includes diagnosis) or require clients to receive clearance from an outside physician. A provision requiring prior medical examination from a physician was expressly taken out of the statute by the legislature. All the statute requires is that the individual sign the declaration and the individual is presumed to be competent. Response: The commission acknowledges that this provision was not included in the statute and has removed it from the rules. Comment: The regulations should include language to allow parents to sign the admission statement on behalf of minors. Texas Family Code, sec.151.003 states that parents have the right to direct the moral and religious training of their children and to consent to their psychiatric, psychological and surgical treatment. Thus, if the parent exercises that right under the Texas Family Code the minor should be treated the same as an adult who has made that decision for themselves. Response: The commission agrees that parents have the right to direct the upbringing of their children and consent to medical care for them. If the statute was silent on the issue of minors, these Family Code provisions would enable a parent to consent to faith-based treatment on behalf of a minor. The law clearly states, however, that a faith-based treatment program shall not treat minors. The commission believes this prohibition applies regardless of parental consent. Comment: The definition of medical care should be redefined to refer only to services provided by medically trained and licensed persons. Response: That definition would not prohibit programs from providing medical care; it would only prohibit them from providing medical care with qualified staff. The program should not be providing services that require licensed professionals. According to the medical practice act, individuals who diagnose or treat a mental or physical disorder for direct or indirect compensation are practicing medicine and must be appropriately licensed. The commission has revised the definition to exclude specific references to detoxification. The new rules are adopted under the Texas Health and Safety Code, Title 6, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. The code affected by the new rules is the Texas Health and Safety Code, Title 6, Subtitle B, 464. sec.145.11. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Chemical dependency- The abuse of, psychological or physical dependence on, or addiction to alcohol, a toxic inhalant, or any substance designated as a controlled substance in the Texas Controlled Substances Act. Chemical dependency treatment - A planned, structured, and organized program designed to initiate and promote a person's chemical-free status or to maintain the person free of illegal drugs. It includes, but is not limited to, the application of planned procedures to identify and change patterns of behavior related to or resulting from chemical dependency that are maladaptive, destructive, or injurious to health, or to restore appropriate levels of physical, psychological, or social functioning lost due to chemical dependency. Commission - The Texas Commission on Alcohol and Drug Abuse. Medical care- Diagnosis or treatment of a physical or mental disorder. Medical detoxification services - Chemical dependency treatment designed to systematically reduce the amount of alcohol and other toxic chemicals in a client's body, manage withdrawal symptoms, and encourage the client to seek ongoing treatment for chemical dependency. Medical withdrawal service - See medical detoxification services. Minor - An individual under the age of 16 whose disabilities of minority have not been removed by marriage or judicial decree. Program - A system of care delivered to chemically dependent individuals. Religious organization- A church, synagogue, mosque, or other religious institution: (A) the purpose of which is the propagation of religious beliefs; and (B) that is exempt from federal income tax by being listed as an exempt organization under the Internal Revenue Code (26 United States Code), Section 501(a). sec.145.23. Admission. (a) An exempt program registered under this section may not admit a person unless the person signs the following form at the time of admission: Figure 1: 40 TAC sec.145.23 (b) The program shall keep the original signed admission statement and give a copy of it to the person admitted. 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. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800695 Mark S. Smock Deputy for Finance and Administration Texas Commission on Alcohol and Drug Abuse Effective date: February 5, 1998 Proposal publication date: September 26, 1997 For further information, please call: (512) 349-6609 CHAPTER 148.Facility Licensure SUBCHAPTER A.Licensure Information General Provisions 40 TAC sec.148.2 The Texas Commission on Alcohol and Drug Abuse adopts amendments to sec.148.2 concerning licensure information, without changes to the proposed text as published in the October 3, 1997 issue of the Texas Register (22 TexReg 9869). These rules establish exemptions from licensure. The amendments provide an exemption for faith-based chemical dependency treatment programs registered with the commission and implement new provisions of Texas Health and Safety Code, sec.464.52, which was adopted during the 75th session of the Texas Legislature. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Health and Safety Code, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. The code affected by the adopted rules is the Texas Health and Safety Code, Chapter 464. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800698 Mark S. Smock Deputy for Finance and Administration Texas Commission on Alcohol and Drug Abuse Effective date: February 5, 1998 Proposal publication date: October 3, 1997 For further information, please call: (512) 349-6609 40 TAC sec.148.3 The Texas Commission on Alcohol and Drug Abuse adopts amendments to sec.148.3 concerning sites and services, without changes to the proposed text as published in the November 21, 1997 issue of the Texas Register (22 TexReg 11316) and will not be republished. This rule describes licensure of multiple sites. The amendments add reference to the required approval letter and remove the requirement for levels of service to be printed on the licensure certificate. The term trainee is replaced by intern. The amendments are adopted to simplify the licensure process and maintain consistency with terminology used in Chapter 150 of this title (relating to Counselor Licensure). Comments were received requesting clarification of the amendment. The Texas Department of Criminal Justice asked how agencies will know the type of service a facility is authorized to provide since the designation will be deleted from the license certificate. The commission issues letters notifying the facility of the approval of the license. This letter includes authorized levels of service. An agency can ask the facility for a copy of the approval letter. The department also asked whether the commission would register extension services and whether circuit rider sites would be such services. The answer to both questions is yes. The amendments are adopted under the Texas Health and Safety Code, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. The code affected by the proposed rule is the Texas Health and Safety Code, Chapter 464. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800699 Mark S. Smock Deputy for Finance and Administration Texas Commission on Alcohol and Drug Abuse Effective date: February 5, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 349-6609 Licensure Procedures 40 TAC sec.148.26 The Texas Commission on Alcohol and Drug Abuse adopts amendments to sec.148.26 concerning inactive status and closure, without changes to the proposed text as published in the November 21, 1997 issue of the Texas Register (22 TexReg 11317) and will not be republished. This rule describes requirements related to the suspension of services on a temporary and permanent basis. The amendments apply the requirements regarding inactive status to facilities who are forced to suspend services because of external action and specify that the inactive license expires after six months if the facility does not submit a written request to reactivate the license. Language relating to the sanctions process has been deleted from this section and moved to sec.148.41 of this title (relating to Sanctions). The amendments are adopted to provide a method for ending inactive status and to better organize the licensure rules. The Texas Department of Criminal Justice submitted comments concurring with the proposed changes. The amendments are adopted under the Texas Health and Safety Code, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. The code affected by the proposed rule is the Texas Health and Safety Code, Chapter 464. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800700 Mark S. Smock Deputy for Finance and Administration Texas Commission on Alcohol and Drug Abuse Effective date: February 5, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 349-6609 Licensure Sanctions 40 TAC sec.148.41 The Texas Commission on Alcohol and Drug Abuse adopts amendments to sec.148.41 concerning sanctions, without changes to the proposed text as published in the November 21, 1997 of the Texas Register (22 TexReg 11317) and will not be republished. This rule describes sanctions that may be placed on a licensed facility. The amendments place final authority for sanctions with the commissioners instead of the executive director, add suspension and reprimand to the list of possible sanctions, and revise the maximum civil penalty. The amendments are adopted to bring rules into compliance with the existing statute and to prevent revoked facilities from applying for licensure for a two year period. The Texas Department of Criminal Justice submitted comments concurring with the proposed changes. The amendments are adopted under the Texas Health and Safety Code, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. The code affected by the proposed rule is the Texas Health and Safety Code, Chapter 464. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800701 Mark S. Smock Deputy for Finance and Administration Texas Commission on Alcohol and Drug Abuse Effective date: February 5, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 349-6609 Definitions 40 TAC sec.148.61 The Texas Commission on Alcohol and Drug Abuse adopts amendments to sec.148.61 concerning definitions, with changes to the proposed text as published in the November 21, 1997 issue of the Texas Register (22 TexReg 11318). These rules define the terms used in this chapter. The proposed amendments delete the definitions for approved clinical training institution, counselor trainee, individual counseling, and add definitions for chemical dependency counseling, clinical training institution, extension services, practicum, and religious organization. The amendments also revise the definitions of chemical dependency education, client, counselor intern, direct supervision, life skills training, and qualified credentialed counselor. The definition of direct supervision has been clarified to ensure that certain activities are documented. The amendments are adopted to clarify the meaning of undefined terms, ensure that clients do not provide education or life skills training, and parallel proposed revisions in Chapter 150 of this title (relating to Counselor Licensure). The Texas Department of Criminal Justice submitted comments identifying the need for wording consistency in the definition of direct supervision. The amendments are adopted under the Texas Health and Safety Code, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. The code affected by the proposed rule is the Texas Health and Safety Code, Chapter 464. sec.148.61.Definitions. The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise. Chemical dependency counseling - Face-to-face interactions between clients and counselors to help clients identify, understand, and resolve issues and problems related to chemical dependency. Chemical dependency education - A planned, structured presentation of information training, provided by qualified staff (not clients), which is related to chemical dependency. It includes but is not limited to: physiological and psychological effects, emotional and social deterioration, rehabilitation and relapse, and risk of acquiring Human Immunodeficiency Virus. Client - An individual who has been admitted to a chemical dependency treatment facility licensed by the commission and is currently receiving services. Clinical training institution - An individual or legal entity approved by the commission to supervise a counselor intern who performs counseling, assessments, or interventions. Counselor intern (CI) - A person pursuing a course of training in chemical dependency counseling at a regionally accredited institution of higher education or a registered clinical training institution who has been designated as a counselor intern by the institution. The activities of a counselor intern shall be performed under the direct supervision of a qualified credentialed counselor. Direct supervision - Oversight and direction of a counselor intern provided by a qualified credentialed counselor (QCC). If the intern has less than 2,000 hours of supervised work experience, the supervisor must be on site when the intern is providing services. If the intern has at least 2,000 hours of documented supervised work experience, the supervisor may be on site or immediately accessible by telephone. The qualified credentialed counselor shall: (A) assume responsibility for the actions of the intern within the scope of the intern's clinical training; (B) (No change.) (C) conduct and document a complete review of the intern's written work product at least weekly; (D) observe the intern providing services to chemical dependency clients at least weekly and document the observation; and (E) meet with the intern at least weekly to provide written and verbal feedback and direction. Extension services - Services provided by a licensed facility at a registered site that is not owned, leased, or operated by the licensed facility. Life Skills Training - A formalized program of training provided by qualified staff (not clients), based upon a written program description, to assist the client in acquiring personal habits, attitudes, values, and social interaction skills that will enable the client to function effectively and/or become gainfully employed. It includes instruction in communication, stress management, problem solving, daily living, and decision making. Practicum- A 300 hour course of structured clinical training in the 12 core functions required for chemical dependency counselor licensure. Qualified credentialed counselor (QCC) - A licensed chemical dependency counselor or one of the professionals listed below: (A)-(H) (No change.) Religious organization- A church, synagogue, mosque, or other religious institution: (A) the purpose of which is the propagation of religious beliefs; and (B) that is exempt from federal income tax by being listed as an exempt organization under the Internal Revenue Code (26 United States Code), Section 501(a). 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. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800702 Mark S. Smock Deputy for Finance and Administration Texas Commission on Alcohol and Drug Abuse Effective date: February 5, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 349-6609 SUBCHAPTER B.Facility Management Personnel and Staff Development 40 TAC sec.148.119 The Texas Commission on Alcohol and Drug Abuse adopts amendments to sec.148.119 concerning clinical training institutions, without changes to the proposed text as published in the November 21, 1997 issue of the Texas Register (22 TexReg 11319) and will not be republished. These rules prohibit a licensed facility from compensating interns unless the facility registers with the commission as a clinical training institution. The amendment removes specific requirements for clinical training institutions, which have been moved to sec.150.72 of this title (relating to Clinical Training Institutions). The amendments are adopted to avoid redundant rules. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Health and Safety Code, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. The code affected by the adopted rule is the Texas Health and Safety Code, Chapter 464. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800703 Mark S. Smock Deputy for Finance and Administration Texas Commission on Alcohol and Drug Abuse Effective date: February 5, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 349-6609 SUBCHAPTER C.Client Management Abuse, Neglect, and Exploitation 40 TAC sec.148.163 The Texas Commission on Alcohol and Drug Abuse adopts amendments to sec.148.163 concerning client labor, without changes to the proposed text as published in the November 21, 1997 issue of the Texas Register (22 TexReg 11320) and will not be republished. These rules describe conditions under which client labor is permitted in licensed facilities. The amendments reorganize current provisions and add a provision restricting client access to client records. The amendments are adopted to clarify existing standards and protect client confidentiality. The Texas Department of Corrections commented that proposed sec.148.163(c) comports with department practice. The amendments are adopted under the Texas Health and Safety Code, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. The code affected by the adopted rule is the Texas Health and Safety Code, Chapter 464. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800704 Mark S. Smock Deputy for Finance and Administration Texas Commission on Alcohol and Drug Abuse Effective date: February 5, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 349-6609 SUBCHAPTER D.Program Services General Program Services Provisions 40 TAC sec.148.202 The Texas Commission on Alcohol and Drug Abuse adopts an amendment to sec.148.202 concerning general program services provisions, without changes to the proposed text as published in the November 21, 1997 issue of the Texas Register (22 TexReg 11321) and will not be republished. These rules describe services required in all programs. The proposed amendment requires clients in residential programs to have an opportunity for eight continuous hours of sleep each night. The amendment is adopted to protect client health and well-being. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Health and Safety Code, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. The code affected by the adopted rule is the Texas Health and Safety Code, Chapter 464. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800705 Mark S. Smock Deputy for Finance and Administration Texas Commission on Alcohol and Drug Abuse Effective date: February 5, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 349-6609 Special Provisions 40 TAC sec.148.234 The Texas Commission on Alcohol and Drug Abuse adopts amendments to sec.148.234 concerning correctional facilities, without changes to the proposed text as published in the November 21, 1997 issue of the Texas Register (22 TexReg 11321) and will not be republished. These rules define special provisions applicable to correctional facilities. The amendments specify that a variance may be granted for community-based transitional therapeutic communities participating in the Criminal Justice Initiative when Texas Department of Criminal Justice contract requirements conflict with commission rules. The amendments are adopted to implement a review process before exemptions are granted. The Texas Department of Criminal Justice objected to the proposed amendments. The department prefers the existing rule that has department policy prevailing over commission rules in the instance of a conflict. However, under the existing rule, the commission has no information when facilities operating under contract to the department depart from commission rules. With the proposed rule, the commission will be notified of conflicts and all parties, including the commission and the department, will be able to communicate about the appropriate solution to the conflict. Accordingly, the commission declines to change the amendment. The department also requested that the name Transitional Therapeutic Communities in sec.148.234(b) be changed to the more current generic term Transitional Treatment Centers. The commission has made that change. The amendments are adopted under the Texas Health and Safety Code, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules and standards for licensure of chemical dependency treatment facilities. The code affected by the adopted rule is the Texas Health and Safety Code, Chapter 464. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800706 Mark S. Smock Deputy for Finance and Administration Texas Commission on Alcohol and Drug Abuse 0Effective date: February 5, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 349-6609 CHAPTER 150.Counselor Licensure 40 TAC sec.sec.150.3-150.8, 150.10, 150.31-150.33, 150.36-150.39, 150.52, 150.53, 150.61 The Texas Commission on Alcohol and Drug Abuse adopts amendments to sec.sec.150.3-150.8, 150.10, 150.31-150.33, 150.36-150.39, 150.52, 150.53, and 150.61 concerning definitions, exemptions, requirement to be licensed, discrimination, consumer information, fees, licensure application, requirements for licensure, background investigation, examination, issuing licenses, license expiration and renewal, inactive status, reciprocity, sanctions, and ethical standards for counselor licensure. Sections 150.3, 150.32, 150.33, and 150.38 are adopted with changes to the proposed text as published in the November 21, 1997 issue of the Texas Register (22 TexReg 11322). Sections 150.4-150.8, 150.10, 150.31, 150.36, 150.37, 150.39, 150.52, 150.53, and 150.61 are adopted without changes to the proposed text and will not be republished. These rules define terms used in the chapter, describe circumstances under which a person must be licensed, detail the requirements and procedures used in the licensure process, describe possible sanctions, and establish ethical standards for licensed chemical dependency counselors. The definition of direct supervision in sec. 150.3 has been clarified to ensure that certain activities are documented. Proposed changes to sec.sec. 150.32 and 150.38 are contrary to the efforts of institutions of higher education to provide riders and other forms of long-distance learning. The sections have been revised to allow videos, but require all long-distance learning to be provided by the accredited institutions of higher education. Section 150.32 has also been clarified in two aspects. First, new provisions have been added to the practicum subsection to clarify an existing requirement and to protect interns. Second, the subsection (f) has been clarified to specify the type of supervision required. Section 150.33(j) has been clarified to specify that an applicant must achieve and maintain recovery. The amendments implement provisions of Sunset legislation, clarify existing provisions, strengthen ethical standards, provide greater flexibility in continuing education, ensure appropriate screening during background investigations, and ensure that everyone who is accumulating supervised work experience for licensure receives structured training and supervision. The commission received comments from institutions of higher education, including the Central Texas college Mental Health Services Department Advisory Committee, the Texas Certification Board of Alcoholism and Drug Abuse Counselors, and from individuals. With regard to proposed sec.sec.150.32(c)(3)(C) and 150.38 (c)(4)(B), institutions of higher education commented that they are being encouraged to provide riders and other forms of long-distance learning. The commission supports these efforts, but wants to ensure that long-distance learning is provided by credible institutions. The advisory committee, the Texas Certification Board, and an individual commented on the amendment of the definition of qualified credentialed counselor. The amendment deletes one requirement that the specified professionals demonstrate chemical dependency experience. The commentors question the deletion. The commission believes that it lacks the authority to limit the practice of professionals licensed by other state agencies. The commission believes that the employing entity is responsible for establishing and enforcing experience credentials of its staff members. The advisory committee, the Texas Certification Board, and an individual commented on the amendments to sec.sec.150.38(b)(4) and 150.38(c). The Texas Certification Board supports the changes. An individual commentor opposes the proposed change to sec.150.38(b)(4) and the advisory committee opposes the change as it relates to ethics training. In that section the commission gives the licensed counselor a choice about continuing education topics once a minimum level of education, by topic, is achieved. The commission believes that as the counselor education process is becoming more standardized, it is no longer necessary to require continuing education in specific topics each two year cycle. With regard to the ethics training, the commission notes that the issues do not change drastically over time; the deletion of the specific requirement regarding ethics training allows counselors to choose topics most pertinent to their practice. The Texas Certification Board also commented on proposed sec.150.61(k)(3) which provides that a counselor shall not establish a personal relationship with a client. The Texas Certification Board suggests that this rule could result in frivolous complaints filed with the commission. The commission is aware of the possibility that personal relationship needs to further defined. The commission will propose such a definition in the near future. Furthermore, the commission expects the investigations and sanctions activities to provide the licensed counselor with opportunities to resolve frivolous complaints. The advisory committee and the Texas Certification Board also commented in favor of eliminating the counselor trainee designation throughout the rules and on the reduction of the period to renew an expired license from two years to one. The advisory committee also commented in favor of requiring pre-service educational institutions register with the commission. The amended sections are adopted under the Texas Civil Statutes, Article 4512o, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to establish procedures for the licensure of chemical dependency counselors. The code affected by the amended rules is Texas Civil Statutes, Article 4512o. sec.150.3. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Application - A complete application packet as described in sec.150.31 of this title (relating to Licensure Application) for examination applicants and sec.150.52 of this title (relating to Reciprocity) for reciprocity applicants. Clinical training institution - An individual or legal entity registered with the commission to supervise a counselor intern. Continuing education hour - At least 50 minutes of participation in an organized, systematic learning experience which deals with and is designed for the acquisition of knowledge, skills, and information. Counselor intern - A person pursuing a course of training in chemical dependency counseling at a regionally accredited institution of higher education or a registered clinical training institution who has been designated as a counselor intern by the institution. The supervised course of training includes practicum hours and supervised work experience hours that are described in writing, performed under the auspices of the institution, and performed under the direct supervision of a qualified credentialed counselor. Direct supervision - Oversight and direction of a counselor intern provided by a qualified credentialed counselor. If the intern has less than 2,000 hours of supervised work experience, the supervisor must be on site when the intern is providing services. If the intern has at least 2,000 hours of documented supervised work experience, the supervisor may be on site or immediately accessible by telephone. The qualified credentialed counselor shall: (A) assume responsibility for the actions of the intern within the scope of the intern's clinical training; (B) (No change.) (C) conduct and document a complete review of the intern's written work product at least weekly; (D) observe the intern providing services to chemical dependency clients at least weekly and document the observation; and (E) meet with the intern at least weekly to provide written and verbal feedback and direction and document the supervision. Practicum provider - An individual or legal entity registered with the commission to supervise practicums. Pre-service educational institution - An individual or legal entity registered with the commission to provide the 270 hours of education required for licensure. Qualified credentialed counselor (QCC) - A licensed chemical dependency counselor or one of the professionals listed below: (A)-(H) (No change.) Sexual exploitation - A pattern, practice, or scheme of conduct by a licensed chemical dependency counselor that may include sexual contact, that can reasonably be construed as being for the purpose of sexual arousal or gratification or sexual abuse of any person. It is not a defense to sexual exploitation of a client or former client if it occurs: (A)-(D) (No change.) Supervised work experience - Documented, verifiable, work experience providing chemical dependency services which is performed by a counselor intern under the auspices of a registered clinical training institution with direct supervision from a qualified credentialed counselor. Supervised work experience may be paid or voluntary. TAADAC - See TAAP. TAAP - Texas Association of Addiction Professionals. Treatment intervention - A meeting designed to persuade a chemically dependent individual to enter treatment. sec.150.32. Requirements for Licensure. (a) To be eligible for a license under this chapter, a person shall: (1)-(2) (No change.) (3) successfully complete 270 classroom hours of approved curricula which is compatible with ICRC standards; (4) complete 300 hours of approved supervised field work practicum which is compatible with ICRC standards; (5) complete 4,000 hours of approved supervised experience working with chemically dependent persons; (6) submit two letters of recommendation from licensed chemical dependency counselors; (7)-(11) (No change.) (b) Applicants holding a baccalaureate degree in chemical dependency counseling, sociology, psychology, or any other degree approved by the commission are exempt from the 270 hours of education and the 300 hour practicum. The applicant must submit an official college transcript. Degree programs approved by the commission include: (1) baccalaureate degrees in social work, behavioral science, human development, or marriage and family that have an internship or field placement course; and (2) (No change.) (c) The following requirements apply to the 270 hours of classroom education. (1) The education shall be provided by a registered pre-service education institution. (2) At least 135 hours shall be specific chemical dependency education, and the remaining hours shall be related education. (3) No more than 12 hours of education shall be obtained through independent study or long-distance learning courses. (A) Only related education may be obtained through independent study or long- distance learning courses. (B) The courses shall be faculty- or instructor-guided and monitored, and students shall have access to faculty or instructors for questions and assistance in the completion of course work. (C) Independent and long-distance learning courses are only accepted when provided by an accredited institution of higher education. (d) The following requirements apply to the 300 hour practicum. (1) The practicum must be completed under the supervision of a registered practicum provider or an accredited institution of higher education. (2) An applicant shall complete the required 270 hours of education before participating in a practicum, with one exception. Students enrolled in an accredited university, college, junior college, or community college may complete the practicum before completing the 270 hours of education if the practicum is: (A) part of the assigned curriculum; and (B) performed under the auspices of the educational institution. (3) The applicant must complete the practicum under the supervision of a single practicum provider or institution of higher education. (A) A practicum provider or an institution of higher education may contract with other facilities so that the student can obtain experience at more than one site. (B) The contracted sites do not need to be registered practicum providers. (4) The commission shall not accept a practicum without documentation from the practicum provider that shows the student successfully completed all 300 hours. (5) The practicum shall include at least ten hours of supervised work experience in each of the 12 core functions. (6) The provider shall not require an intern to work more than 325 hours in order to accumulate the 300 required practicum hours. (7) The provider shall give the student a written practicum schedule which includes a completion date before the practicum begins. (e) The following requirements apply to the 4,000 hours of supervised work experience. (1) The work experience must be part of a supervised course of training at a registered clinical training institution. (2) An applicant cannot accumulate supervised work experience until the 270 classroom hours are complete. (3) The applicant must be designated as a counselor intern by the clinical training institution. (4) The work may be paid or voluntary. (f) An unlicensed graduate has three years to complete testing and may continue to provide counseling for up to three years after the date of graduation if the graduate is working under appropriate supervision at a registered clinical training institution. Direct supervision is not required. sec.150.33. Background Investigation. (a) The commission conducts a background investigation on every applicant for licensure. Checks are conducted when: (1) an applicant has met all other requirements for licensure; (2) a licensed chemical dependency counselor applies for license renewal; and (3) the commission receives information of a possible conviction. (b) The commission obtains a criminal history report from the Texas Department of Public Safety. When an applicant applies through reciprocity, the commission also obtains a criminal history report from the Federal Bureau of Investigations (FBI). (c) The individual shall disclose and provide complete information regarding all misdemeanor and felony convictions. Failure to make full and accurate disclosure will be grounds for immediate application denial, disciplinary action, or license revocation. (d) Applications with criminal histories are categorized according to the seriousness of the offense. The category shall be determined by the most serious offense, as defined by law. (1) Category I. The following felonies: (A) attempted murder and homicide; and (B) sexual assault, including but not limited to attempted sexual assault, rape, indecency with a child, molestation, sexual assault of a child, and indecent exposure. (2) Category II: Felonies or misdemeanors that may result in harm to others, including but not limited to: (A) vehicular manslaughter; (B) involuntary manslaughter; (C) kidnapping and attempted kidnapping; (D) arson; (E) robbery; (F) attempted robbery; (G) assault (felony or misdemeanor); (H) theft from person (felony or misdemeanor); and (I) DWI involving injury or accident. (3) Category III: Felonies which do not result in harm to others, including but not limited to: (A) any combination of three or more misdemeanors from Category II; (B) burglary; (C) theft (felony); (D) three or more DWIs; (E) felony DWI; (F) larceny (felony); (G) forgery (felony); (H) possession of a controlled substance (felony); (I) delivery of a controlled substance (felony); (J) fraud/credit card abuse; (K) unauthorized use of a motor vehicle; (L) unlawfully carrying a weapon (felony or misdemeanor); and (M) burglary of a vehicle. (4) Category IV: Misdemeanors which do not result in harm to others. Three or more Category IV convictions shall be reclassified as a Category III offense. Category IV offenses include but are not limited to: (A) one or two DWIs; (B) possession of a controlled substance (misdemeanor); (C) disorderly conduct; (D) arrest and convictions resulting from traffic warrants (E) reckless damage; (F) resisting arrest; (G) theft (misdemeanor); (H) bad check; (I) prostitution; (J) public intoxication; (K) criminal mischief (misdemeanor); and (L) driving while license suspended (e) The commission shall determine if the conviction(s) are directly related to the duties and responsibilities of a chemical dependency counselor. The commission shall consider the following factors: (1) the nature and seriousness of the crime; (2) the relationship of the crime to the purposes for requiring a license to engage in chemical dependency counseling; (3) the extent to which a license might offer an opportunity to engage in further criminal activity of the same type; and (4) the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of chemical dependency counseling. (f) If the conviction(s) do not relate to the duties and responsibilities of a chemical dependency counselor, the commission shall process the license application according to standard procedures. (g) If the conviction(s) do relate to the duties and responsibilities of a chemical dependency counselor, the commission shall evaluate the present fitness of the individual to provide chemical dependency counseling. (h) The commission uses the following guidelines in evaluating an individual's present fitness: (1) An applicant with a Category I conviction should have at least 15 years since the last Category I conviction. (2) An applicant with a Category II conviction should have at least ten years since the last Category II conviction to be eligible for a license. (3) An applicant with a Category III conviction should have at least seven years since the last Category III conviction to be eligible for a license. (4) An applicant with a Category IV conviction should have at least five years since the last Category IV conviction to be eligible for a license. (i) The commission shall also consider the following factors in determining the present fitness of a person who has been convicted of a crime which relates to the duties and responsibilities of a chemical dependency counselor: (1) the age at the time each crime was committed; (2) the conduct and work history of the person before and after the criminal conviction(s); (3) evidence of the person's rehabilitation efforts and outcome; (4) two letters of recommendation from qualified credentialed counselors; and (5) other evidence of fitness that may be relevant. (j) If the person's criminal activity is related to a history of chemical dependency, the commission will also consider the person's efforts and success in achieving and maintaining recovery. Applicants with a history of chemical dependency should demonstrate evidence of treatment or rehabilitation and at least two years of continuous recovery. (k) An individual whose application is denied or whose license is suspended or revoked may request a hearing under the procedures established in Texas Administrative Code, Title 40, Chapter 142. To the extent that the disciplinary action is based on the applicant's criminal background, the hearing shall also be governed by Texas Civil Statutes, Article 6252-13c. sec.150.38. License Expiration and Renewal. (a) (No change.) (b) To renew a license, the counselor shall: (1)-(3) (No change.) (4) complete at least 60 hours of continuing education that is related to chemical dependency and approved by the commission during the two-year licensure period. If an individual does not have six documented hours in any of the following areas, the continuing education must include: (A)-(E) (No change.) (5) Individuals applying for licensure renewal who can show at least six education hours of documented training in any of these five topics are not required to obtain any additional hours of training in that topic. Instead, the applicant shall obtain an additional three hours of chemical dependency training to complete the required 60 hours. (c) The commission will accept continuing education hours that meet the following criteria. Hours that do not meet these criteria may be evaluated on a case-by-case basis. (1) (No change.) (2) The commission will accept continuing education credits from Texas Association of Addiction Professionals and other recognized certification boards, including, but not limited to, the Texas State Board of Nurse Examiners and the Texas State Board of Social Work Examiners. Continuing education certificates must contain: (A)-(G) (No change.) (3) (No change.) (4) No more than 12 hours of independent study or long-distance learning courses will be accepted. (A) Independent study or guided learning courses must be faculty- or instructor- guided and monitored, and students must have access to faculty or instructors for questions and assistance in the completion of such course work. (B) Independent and long-distance learning courses are only accepted when provided by an accredited institution of higher education. (d) Renewal fees are due on or before the expiration date. A licensee who submits a late renewal application shall pay a penalty fee in addition to the renewal application and licensure fees, as provided in sec.150.10 of this title (relating to Fees). Failure to receive notice from the commission does not waive or extend renewal deadlines. (e) A license cannot be renewed more than one year after the date of expiration. To obtain a new license, the person shall comply with all requirements and procedures for obtaining an initial license. This includes passing the written and oral examinations, with one exception. If the person was licensed in Texas, moved to another state, and is currently licensed and has been in practice in the other state for the two years preceding application, the person may renew an expired license without reexamination. The person must pay a fee that is equal to two times the required renewal fee. (f) (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. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800707 Mark S. Smock Deputy for Finance and Administration Texas Commission on Alcohol and Drug Abuse Effective date: February 5, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 349-6609 40 TAC sec.sec.150.71-150.73 The Texas Commission on Alcohol and Drug Abuse adopts new sec.sec.150.71-150.73 concerning pre-service education institutions, clinical training institutions, and practicum providers. Sections 150.71 and 150.73 are adopted with changes to the proposed text as published in the November 21, 1997 issue of the Texas Register (22 TexReg 11333). Section 150.72 is adopted without changes to the proposed text and will not be republished. The new sections are adopted to specify existing standards for clinical training institutions and practicum providers, improving oversite of these organizations. In sec.150.71, a reference to clinical training institution has been corrected to read pre-service education institution. Section 150.73 has been clarified in two respects. First, a practicum providers may contract with other agencies to provide part of the required practicum training. These written agreements must be available for review by the commission. Second, specific forms required to be completed by the supervisor of the intern must be provided to the intern in a training manner. The rules are adopted for pre-service education institutions to implement a new registration process. Previously, the commission accepted hours from education providers approved by the Texas Association of Addiction Professionals. The commission received comments from the Central Texas College Mental Health Services Department Advisory Committee and a number of individuals. The advisory committee concurs in the requirement that pre-service training institutions be registered with the commission. The new sections are adopted under the Texas Civil Statutes, Article 4512o, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to establish procedures for the licensure of chemical dependency counselors. The code affected by the new rules is Texas Civil Statutes, Article 4512o. sec.150.71. Pre-Service Education Institutions (PSEI). (a) To become a pre-service education institution (PSEI), an organization must submit a complete application and agree to comply with commission requirements described in the application packet. (b) The PSEI shall receive the registration letter and PSEI number before training begins. (c) The approval is valid for two years. The PSEI shall reapply at every two years by submitting the Application Update Form provided by the commission. The commission may mail a courtesy notice, but it is the PSEI's responsibility to reapply at least 45 days before the expiration date. (d) The PSEI shall notify the commission in writing within 30 days of any changes from the information submitted on the initial or renewal application. This includes: (1) closure of the education program; (2) addition of a new education site; or (3) a change in the organization's name. (e) The commission may withdraw approval if the PSEI fails to comply with minimum requirements. sec.150.73. Practicum Providers. (a) To become a practicum provider, an organization must submit a complete application and agree to comply with the requirements in this section. (b) The provider shall receive the registration letter and practicum provider number before training begins. (c) Approval allows the organization to provide practicum supervision at any of its programs or sites. (d) The approval is valid for two years. The practicum provider shall reapply every two years by submitting the Application Update Form provided by the commission. The commission may mail a courtesy notice, but it is the provider's responsibility to reapply at least 45 days before the expiration date. (e) The provider shall notify the commission in writing within 30 days of any changes from the information submitted on the initial or renewal application. This includes: (1) closure of the training program; and (2) a change in the organization's name. (f) The commission may withdraw approval if the practicum provider fails to comply with minimum requirements at any site. (g) The practicum provider shall establish admission criteria. No applicant shall be admitted without: (1) documentation that the applicant has successfully completed the 270 hours of required classroom education; and (2) a signed ethics agreement which is consistent with the LCDC Ethical Standards in sec.150.61 of this title (relating to Ethical Standards). (h) The practicum provider shall appoint a practicum coordinator who is a qualified credentialed counselor (QCC). The practicum coordinator shall oversee all training activities and ensure compliance with commission requirements and rules. (i) The practicum provider shall develop a written training curricula. (1) The training program shall include learning objectives, learning activities, and the estimated number of hours of experience in each of the 12 core functions. (2) All training shall be provided by QCCs. (3) Training may be provided through formal agreements with other agencies if the practicum provider agency does not perform all of the 12 core functions. These agencies do not need to be registered practicum providers. All contractual agreements must be documented and available for review by the commission upon request. (4) Although the practicum may involve multiple sites and facilities, all practicum credit is awarded under a single practicum provider number and the designated practicum coordinator maintains responsibility for the overall practicum training. (5) An intern must complete all 300 hours of the practicum with a single approved practicum provider. A practicum provider cannot grant partial credit for a practicum. (j) All interns shall work under the direct supervision of a qualified credentialed counselor (QCC). A single QCC shall not supervise more than five interns. (k) The QCC shall evaluate each intern's progress in writing and provide the intern with appropriate information and guidance. (1) The practicum coordinator will complete written evaluations with input from other QCCs who have provided direct supervision for the intern. (2) The coordinator will complete a Practicum Student Evaluation Form and a Supervised Field Work Practicum Documentation of Hours Form for each intern. (l) The practicum provider shall inform students of testing requirements and procedures, as well as testing schedules and information provided by the commission. (m) The practicum provider shall maintain the following documentation for four years: (1) curricula; (2) letters of agreement with other agencies (if applicable); (3) verification of current credentials of all training personnel; (4) supervision assignments; and (5) student files, which shall include: (A) application and documentation of eligibility; (B) ethics agreement; (C) copy of the Practicum Documentation Form; and (D) copy of the Practicum Student Evaluation 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. Filed with the Office of the Secretary of State on January 16, 1998. TRD-9800708 Mark S. Smock Deputy for Finance and Administration Texas Commission on Alcohol and Drug Abuse Effective date: February 5, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 349-6609