PROPOSED RULES
Before an agency may permanently adopt a new or amended section or repeal an 
existing section, a proposal detailing the action must be published in the Texas 
Register at least 30 days before action is taken. The 30-day time period gives 
interested persons an opportunity to review and make oral or written comments on 
the section. Also, in the case of substantive action, a public hearing must be 
granted if requested by at least 25 persons, a governmental subdivision or 
agency, or an association having at least 25 members.
Symbology in proposed amendments. New language added to an existing section is 
indicated by the <nl> code. [Brackets] indicate deletion of existing material 
within a section.

TITLE 1. ADMINISTRATION
PART XV. Health and Human Services
CHAPTER 355.Medicaid Reimbursement Rates
SUBCHAPTER E.Community Care for Aged and Disabled
1 TAC sec.355.502-sec.355.505
The Health and Human Services Commission proposes amendments to sec.355.502, 
concerning reimbursement methodology for the Community-based Alternatives (CBA) 
Program, sec.355.503, concerning reimbursement methodology for the CBA Program 
for 1997 and subsequent cost reports, sec.355.504, concerning reimbursement 
methodology for the Community Living Assistance and Support Services (CLASS) 
Waiver Program, and sec.355.505, concerning reimbursement methodology for the 
CLASS Program for 1997 and subsequent cost reports. 
The purpose of the amendments to the CBA rules is to eliminate the monthly fee 
paid to providers to obtain medical supplies and prescriptions for the 
recipient. Costs for medical supplies will be included as adaptive aids in the 
current CBA requisition fee schedule. Prescriptions currently are covered 
through the Medicaid Vendor Drug Program. The proposed amendments also establish 
a methodology for determination of a payment rate for reassessment of the 
recipient after Medicaid eligibility is established. Such reassessments are 
required by federal regulations. 
The amendments to the CLASS rules are intended to establish a methodology for 
determination of a fee schedule to reimburse CLASS providers for staff costs in 
acquisition of adaptive aids and minor home modifications for the recipient. 
These costs currently are reimbursed as habilitation units of service. If 
approved, the amendments will establish a methodology similar to the CBA program 
for these costs. In addition, the amendment would establish a methodology to 
determine the payment rate for reassessment of a recipient after Medicaid 
eligibility is established. Such reassessments are required by federal 
regulations.
Gary Bego, Associate Commissioner for Fiscal Affairs, has determined that for 
the first five years the rule is in effect no fiscal implications for state or 
local government are anticipated from the enforcement or administration of the 
rule. 
Mr. Bego has also determined that for each year of the first five years this 
rule is in effect the public benefit anticipated from the enforcement of this 
rule is (1) clarification of the handling of revenue from acquisition fees by 
providers for medical supplies, prescriptions, adaptive aids, and minor home 
modifications, (2) the determination of an appropriate reimbursement of 
reassessment of a CBA or CLASS program participant. There is no anticipated 
economic cost to persons required to comply with the proposed rule. This rule 
will have no local employment impact. There will be no effect on small 
businesses.
Questions or comments by members of the public on the proposed rule are 
solicited. Information about the proposal may be obtained by contacting Carolyn 
Pratt, Texas Department of Human Services, P. O. Box 149030, Austin, Texas 
78714-9030, or by phone 512-438-4057. Written comments on the proposal should be 
mailed or delivered to Steve Svadlenak, Texas Health and Human Services 
Commission, P.O. Box 13247, Austin, Texas 78711, or by facsimile (FAX) to (512) 
424-6641. 
The amendments are proposed under Texas Government Code, sec.531.033, which 
authorizes the commissioner of health and human services to adopt rules 
necessary to carry out the commission's duties under chapter 531, and under 
sec.531.021, which authorizes the commission to adopt reasonable rules and 
standards to govern the establishment of rates fees, and charges for medical 
assistance payments under Human Resources Code, Chapter 32. 
This amendments implement Texas Government Code, Chapter 531, sec.531.021 and 
Human Resources Code, Chapter 32, sec.32.028. 

sec.355.502.Reimbursement Methodology for the Community-based Alternatives 
Program - a 1915(c) Medicaid Home and Community-based Waiver for Aged and 
Disabled Adults Who Meet Criteria for Alternatives to Nursing Facility Care.
(a) General requirements. Cost reports pertaining to providers' fiscal years 
ending in calendar year 1996, or modeled costs used for reimbursement 
determination, will be governed by the information in this section, and the 
information in sec.355.201(b) of this title (relating to General Specifications 
and Methodology). In addition, the Texas Department of Human Services (DHS) 
applies the general principles of cost determination as specified in sec.355.101 
of this title (relating to Introduction). Cost reports pertaining to providers' 
fiscal years ending in calendar year 1997 and subsequent years will be governed 
by the information in sec.355.503 of this title (relating to Reimbursement 
Methodology for Community-based Alternatives Waiver Program, a 1915(c) Medicaid 
Home and Community-based Waiver for Aged and Disabled Adults Who Meet Criteria 
for Alternatives to Nursing Facility Care: 1997 and Subsequent Cost Reports). 
(b) - (h) (No change.) 
(i) Waiver reimbursement determination methodology. Recommended reimbursements 
are determined in the following manner. 
(1) Unit of service reimbursement. Reimbursement for personal assistance 
services, nursing, physical therapy, occupational therapy, speech pathology, and 
in-home respite care services will be determined on a fee-for-service basis in 
the following manner. 
(A) Total allowable costs for each provider will be determined by analyzing the 
allowable historical costs reported on the cost report.
(B) Total allowable costs are reduced by the amount of <nl> the<ol> pre-
enrollment expense fee, [and] requisition fee, <nl> and reassessment fee<ol> 
revenues <nl>accrued for the reporting period. <ol>[received through a voucher 
payment system] 
(C) - (F) (No change.) 
(2) - (3) (No change.) 
(4) Requisition fees. Requisition fees are reimbursements paid to the CBA 
<nl>home and community support services<ol> contracted providers for their 
efforts in acquiring adaptive aids and minor home modifications for CBA 
participants. [Reimbursement for medical supplies and prescriptions covered 
under adaptive aids will be determined on a per month per client served basis.] 
Reimbursement for adaptive aids and minor home modifications will vary based on 
the actual cost of the adaptive aid and minor home modification. Reimbursements 
are determined using a method based on modeled projected expenses which are 
developed by using data from surveys; cost report data from [other] similar 
programs; consultation with other service providers and/or professionals 
experienced in delivering contracted services; and<nl>/or<ol> other sources. 
<nl>(5)<ol> <nl>Reassessment fees. Reassessment fees are reimbursements paid to 
CBA home and community support services contracted providers for performing 
annual reassessments. Reimbursements are determined using a method based on 
modeled projected expenses which are developed by using data from surveys; cost 
report data from similar programs; consultation with other service providers 
and/or professionals experienced in delivering contracted services; and/or other 
sources. <ol>
[(5) Pre-enrollment expense fee. Reimbursement for pre-enrollment assessment is 
determined using a method based on modeled projected expenses which are 
developed by using data from surveys; cost report data from other similar 
programs, consultation with other service providers and/or professionals 
experienced in delivering contracted services; and other sources.] 
<nl>(6)<ol> <nl>Pre-enrollment expense fee. Reimbursement for pre-enrollment 
assessment is determined using a method based on modeled projected expenses 
which are developed by using data from surveys; cost report data from other 
similar programs, consultation with other service providers and/or professionals 
experienced in delivering contracted services; and other sources. <ol>
[(6) Exceptions to the reimbursement determination methodology. DHS may adjust 
reimbursement to compensate foranticipated future changes in the program 
requirements in accordance with sec.355.109 of this title (relating to Adjusting 
Reimbursement When New Legislation, Regulations, or Economic Factors Affect 
Costs).] 
<nl>(7)<ol> <nl>Exceptions to the reimbursement determination methodology. DHS 
may adjust reimbursement to compensate for anticipated future changes in the 
program requirements in accordance with sec.355.109 of this title (relating to 
Adjusting Reimbursement When New Legislation, Regulations, or Economic Factors 
Affect Costs). <ol>
[(7) Authority to determine reimbursement. The authority to determine 
reimbursement is specified in sec.355.101 of this title (relating to 
Introduction).] 
<nl>(8)<ol> <nl>Authority to determine reimbursement. The authority to determine 
reimbursement is specified in sec.355.101 of this title (relating to 
Introduction). <ol>

sec.355.503. Reimbursement Methodology for the Community-based Alternatives 
Waiver Program - a 1915(c) Medicaid Home and Community-based Waiver for Aged and 
Disabled Adults Who Meet Criteria for Alternatives to Nursing Facility Care: 
1997 and Subsequent Cost Reports. 
(a) - (c) (No change.) 
(d) Waiver reimbursement determination methodology. Recommended reimbursements 
are determined in the following manner. 
(1) Unit of service reimbursement. Reimbursement for personal assistance 
services, nursing, physical therapy, occupational therapy, speech pathology, and 
in-home respite care services will be determined on a fee-for-service basis in 
the following manner. 
(A) (No change.) 
(B) Total allowable costs are reduced by the amount of <nl> the<ol> pre-
enrollment expense fee, [and] requisition fee, <nl> and reassessment fee<ol> 
revenues <nl>accrued for the reporting period. <ol> [received through a voucher 
payment system.] 
(C)- (F) (No change.) 
(2) - (3) (No change.) 
(4) Requisition fees. Requisition fees are reimbursements paid to the CBA 
<nl>home and community support services<ol> contracted providers for their 
efforts in acquiring adaptive aids and minor home modifications for CBA 
participants. [Reimbursement for medical supplies and prescriptions covered 
under adaptive aids will be determined on a per month per client served basis.] 
Reimbursement for adaptive aids and minor home modifications will vary based on 
the actual cost of the adaptive aid and minor home modification. Reimbursements 
are determined using a method based on modeled projected expenses which are 
developed by using data from surveys; cost report data from [other] similar 
programs; consultation with other service providers and/or professionals 
experienced in delivering contracted services; and<nl>/or<ol> other sources. 
<nl>(5)<ol> <nl> Reassessment fees. Reassessment fees are reimbursements paid to 
CBA home and community support services contracted providers for performing 
annual reassessments. Reimbursements are determined using a method based on 
modeled projected expenses which are developed by using data from surveys; cost 
report data from similar programs; consultation with other service providers 
and/or professionals experienced in delivering contracted services; and/or other 
sources. <ol>
[(5) Pre-enrollment expense fee. Reimbursement for pre-enrollment assessment is 
determined using a method based on modeled projected expenses which are 
developed by using data from surveys; cost report data from other similar 
programs, consultation with other service providers and/or professionals 
experienced in delivering contracted services; and other sources.] 
<nl>(6)<ol> <nl>Pre-enrollment expense fee. Reimbursement for pre-enrollment 
assessment is determined using a method based on modeled projected expenses 
which are developed by using data from surveys; cost report data from other 
similar programs, consultation with other service providers and/or professionals 
experienced in delivering contracted services; and other sources. <ol>
[(6) Exceptions to the reimbursement determination methodology. DHS may adjust 
reimbursement if new legislation, regulations, or economic factors affect costs, 
according to sec.355.109 of this title (relating to Adjusting Reimbursement When 
New Legislation, Regulations, or Economic Factors Affect Costs).] 
<nl>(7) <ol> <nl>Exceptions to the reimbursement determination methodology. DHS 
may adjust reimbursement if new legislation, regulations, or economic factors 
affect costs, according to sec.355.109 of this title (relating to Adjusting 
Reimbursement When New Legislation, Regulations, or Economic Factors Affect 
Costs). <ol>
(e) - (h) (No change.)

sec.355.504. Reimbursement Methodology for the Community Living Assistance and 
Support Services Waiver Program - a 1915(c) Medicaid Home and Community-based 
Waiver for Persons With Related Conditions.
(a) General requirements. Cost reports pertaining to providers' fiscal years 
ending in calendar year 1994, 1995, or 1996 will be governed by the information 
in this section, and the information in sec.355.201(b) of this title (relating 
to General Specifications and Methodology). In addition, the Texas Department of 
Human Services (DHS) applies the general principles of cost determination as 
specified in sec. 355.101 of this title (relating to Introduction). Cost reports 
pertaining to providers' fiscal years ending in calendar year 1997 and 
subsequent years will be governed by the information in sec.355.505 of this 
title (relating to Reimbursement Methodology for 1915(c) of the Social Security 
Act Medicaid Home and Community Based Waiver Services for Persons With Related 
Conditions: 1997 and Subsequent Cost Reports).
(b)-(c) (No change.)
(d) Waiver reimbursement determination methodology. 
(1) - (3) (No change.)
(4) Reimbursement determination process. Recommended unit of service 
reimbursements are determined in the following manner. 
(A) Unit or service reimbursement for habilitation, nursing, physical therapy, 
occupational therapy, speech pathology, and psychological services are 
determined in the following manner: 
(i) (No change.)
(ii) Total allowable costs are reduced by the amount of <nl> the<ol> 
administrative expense fee, <nl>requisition fee, and reassessment fee<ol> 
revenues <nl>accrued for the reporting period.<ol> [received through a voucher 
payment system.] 
(iii) - (vii) (No change.)
(B)-(D) (No change.)
(5) (No change.)
(e) (No change.)
<nl>(f)<ol> <nl> Requisition fees. Requisition fees are reimbursements paid to 
the CLASS direct service agency contract-ed providers for their efforts in 
acquiring adaptive aids and minor home modifications for CLASS participants. 
Reimbursement for adaptive aids and minor home modifications will vary based on 
the actual cost of the adaptive aid and minor home modification. Reimbursements 
are determined using a method based on modeled projected expenses which are 
developed by using data from surveys; cost report data from similar programs; 
consultation with other service providers and/or professionals experienced in 
delivering contracted services; and/or other sources. <ol>
[(f) Reporting requirements. The program director's full salary is to be 
reported on the line item of the cost report designated for the director.] 
<nl>(g)<ol> <nl> Reassessment fees. Reassessment fees are reimbursements paid to 
CLASS direct service agency contracted providers for performing annual 
reassessments. Reimbursements are determined using a method based on modeled 
projected expenses which are developed by using data from surveys; cost report 
data from similar programs; consultation with other service providers and/or 
professionals experienced in delivering contracted services; and/or other 
sources. <ol>
[(g) Allowable and unallowable costs.]
<nl>(h)<ol> <nl> Reporting requirements. The program director's full salary is 
to be reported on the line item of the cost report designated for the director. 
<ol>
<nl>(i)<ol> <nl> Allowable and unallowable costs. <ol>
(1) General. Allowable and unallowable costs are defined to identify expenses 
which are and are not reasonable and necessary to provide waiver services to 
clients by a prudent and cost-effective operation. Only allowable cost 
information is used to compile the reimbursement determination data base. Cost 
reporting by providers should be consistent with generally accepted accounting 
principles (GAAP). In cases where DHS cost reporting rules conflict with GAAP, 
IRS, or other authorities, DHS rules take precedence for cost reporting 
purposes. 
(2) Definitions. The following words and terms, when used in this section, shall 
have the following meanings, unless the context clearly indicates otherwise. 
(A) Allowable costs. Those expenses that are reasonable and necessary in the 
normal conduct of operations relating to the provision of waiver services. 
(i) "Reasonable" refers to the amount expended. The test of reasonableness is 
that the amount expended does not exceed the cost whichwould be incurred by a 
prudent business operator seeking to contain costs.
(ii) "Necessary" refers to the relationship of the cost to provision of waiver 
services. To qualify as a necessary expense, a cost must be one that is usual 
and customary in the operation of waiver services and must meet the following 
requirements. 
(I) The expenditure was not for personal or other activity not specifically 
related to the provision of waiver services.
(II) The cost does not appear on the list of specific unallowable costs and is 
not unallowable under other federal, state, or local laws or regulations.
(III) The cost bears a significant relationship to the provision of waiver 
services. The test of significance is whether elimination of the expenditure 
would adversely affect the delivery of waiver services. 
(IV) The expense was incurred in the purchase of materials, supplies, or 
services provided directly to the clients or staff of the program in the conduct 
of normal business operations. 
(iii) Normal conduct of operations relating to waiver services and the pre-
enrollment assessment process includes, but is not limited to, the following: 
(I) The administrative expense fee covers reimbursement for the pre-enrollment 
assessment and care planning services. 
(II) Only direct contact with the client is considered allowable when recording 
pre-enrollment assessment and care planning time for each type of professional 
service. 
(III) Only costs associated with the pre-enrollment assessment and care planning 
of those clients seeking enrollment into the waiver program will be allowed. 
(IV) Expenses not used solely for the provision of waiver services and the pre-
enrollment assessment. Whenever allowable costs are attributable partially to 
personal or other business interests not related to the provision of waiver 
services/pre-enrollment assessment and partially to waiver services/pre-
enrollment assessment, the latter portion may be allowed on a pro rata basis if 
the proportion of use by the waiver services/pre-enrollment assessment is well-
documented.
(V) Allowable costs for cost reporting purposes should result from arms-length 
transactions involving unrelated parties. However, in related-party transactions 
the allowable cost to the waiver services program is limited to the lesser of 
the actual cost to the related party (excluding markups and profit margins) or 
the cost to the contracted waiver service provider. Such allowable cost must not 
exceed the usual and customary charges for comparable goods or services in an 
arms-length transaction. A related party is a natural person or organization 
related to the provider entity by blood/marriage, or common ownership, or any 
association which permits either entity to exert power or influence, either 
directly or indirectly, over the other. 
(B) Unallowable costs. Those expenses that are not reasonable or necessary for 
the provision of waiver services and the pre-enrollment assessment. Unallowable 
costs are not included in the data base used to determine recommended 
reimbursements and fees. 
(3) List of Allowable Costs. The following list of allowable costs is not 
comprehensive, but rather serves as a general guide and identifies certain key 
expense areas. The absence of a particular cost does not necessarily mean that 
it is not an allowable cost. 
(A) Compensation of waiver services staff. Compensation will be given only to 
those staff who provide waiver services directly to the clients or in support of 
staff of the waiver services program in the normal conduct of operations 
relating to the provision of waiver services. This includes:
(i) Wages and salaries. 
(ii) Payroll taxes and insurance. Federal Insurance Contributions Act (FICA or 
social security), unemployment compensation insurance, workman's compensation 
insurance. 
(iii) Employee benefits. Employer-paid health, life, accident, liability, and 
disability insurance for employees; contributions to employee retirement fund; 
and deferred compensation limited to the dollar amount the employer contributes. 
The expense: 
(I) must represent a clearly enumerated liability of the employer to individual 
employees; 
(II) must not be incurred as a benefit to employees who do not provide services 
directly to the clients or staff of the waiver services program; and
(III) must not represent any form of profit sharing. 
(B) Compensation of staff outside of the waiver program who provide services 
directly to the clients or in support of staff of the program. Allowable 
compensation is limited to the pro rata portion of the actual working time spent 
on behalf of the program.
(C) Compensation of outside consultants providing services directly to the 
clients or in support of staff of the program. 
(D) Materials and supplies. Includes office supplies, housekeeping supplies, 
medical, and other supplies. 
(E) Utilities. Includes electricity, natural gas, fuel oil, water, waste water, 
garbage collection, telephone, and telegraph. 
(F) Buildings, equipment, and capital expenses. Buildings, equipment, and 
capital used by the waiver provider or in support of the waiver services staff, 
and not for personal business. If these costs are shared with other program 
operations, the portion of the costs relating directly to waiver services may be 
allowed on a pro rata basis if the proportion of use for waiver services is 
documented. 
(G) Depreciation and amortization expense. Property owned by the provider entity 
and improvements to owned, leased, or rented property used by the waiver 
provider that are valued at more than $500 at the time of purchase must be 
depreciated or amortized using the straight line method. The minimum usable 
lives to be assigned to common classes of depreciable property are as follows: 
(i) buildings: 30 years, with a minimum salvage value of 10%; and 
(ii) transportation equipment used for the transport of clients, materials and 
supplies, or staff providing waiver services: a minimum of three years for 
passenger automobiles and five years for light trucks and vans, all with a 
minimum salvage value of 10%. 
(H) Provider-owned property. Property owned by the provider entity and 
improvements to property owned, leased, or rented by the provider that are 
valued at less than $500 at the time of purchase may be treated as ordinary 
expenses.
(I) Rental and lease expense. This includes rental and lease expenses for 
buildings, building equipment, transportation equipment, other equipment, 
related materials, and supplies used by the waiver provider. Rental or lease 
expense paid to a related party is limited to the actual allowable cost incurred 
by the related party.
(J) Transportation expense. This includes the cost of public transportation or 
mileage claimed at the allowable reimbursement per mile set by the state 
legislature for state employees. 
(K) Interest expense. Interest expense is allowable on loans for the acquisition 
of allowable items, subject to:
(i) all of the requirements for allowable costs, 
(ii) written evidence of the loan, and 
(iii) the provider entity being named as maker or comaker of the note. Allowable 
interest is limited to the lesser of the cost to the related party or the 
prevailing national average prime interest rate for the year in which the loan 
contract was executed. 
(L) Tax expense. This includes real and personal property taxes, motor vehicle 
registration fees, sales taxes, Texas corporate franchise taxes, and 
organization filing fees.
(M) Insurance expense. This includes facility fire and casualty, professional 
liability and malpractice, and transportation insurance.
(N) Contract waiver services provided by outside vendors to persons with related 
conditions. 
(O) Business and professional association dues limited to associations devoted 
primarily to the issues of related conditions.
(P) Outside training costs. Limited to direct costs (transportation, meals, 
lodging, and registration fees) for training provided to personnel rendering 
services directly to the clients or staff of the waiver provider. The training 
must be directly related to issues concerning related conditions and located 
within the continental United States.
(4) List of unallowable costs. Unallowable costs are those expenses that are not 
reasonable or necessary for the provision of waiver services. Unallowable costs 
are not included in the reimbursement determination data base used to determine 
recommended reimbursements. The following list is not intended to be 
comprehensive, but rather to serve as a general guide and identify certain key 
expense areas that are not allowable. The absence of a particular cost does not 
necessarily mean that it is an allowable cost. 
(A) Compensation in the form of salaries, benefits, or any form of compensation 
given to individuals who do not provide waiver services either directly to 
clients or in support of staff;
(B) Personal expenses not directly related to the provision of waiver services;
(C) Client room and board expenses, except for those related to respite care; 
(D) management fees paid to a related party that are not derived from the actual 
cost of materials, supplies, or services provided directly to the program; 
(E) Advertising expenses other than those for yellow pages advertising, 
advertising for employee recruitment, and advertising to meet any statutory or 
regulatory requirement;
(F) Business expenses not directly related to the provision of waiver services; 
(G) Political contributions; 
(H) Depreciation and amortization of unallowable costs. This includes amounts in 
excess of those resulting from the straight line depreciation method, 
capitalized lease expenses in excess of the actual lease payment, and goodwill 
or any excess above the actual value of the physical assets at the time of 
purchase; 
(I) Trade discounts of all types. This includes returns, allowances, and 
refunds; 
(J) Donated facilities, materials, supplies, and services, including the values 
assigned to the services of unpaid workers and volunteers;
(K) Dues to all types of political and social organizations, and to professional 
associations not directly and primarily concerned with the provision of waiver 
services; 
(L) Entertainment expenses except those incurred for entertainment provided to 
the staff of the waiver provider as an employee benefit; 
(M) Boards of directors' fees; 
(N) Fines and penalties for violations of regulations, statutes, and ordinances 
of all types; 
(O) Fund raising and promotional expenses; 
(P) Expenses incurred in the purchase of goods and services with revenues from 
gifts, donations, endowments, and trusts; 
(Q) Interest expenses on loans pertaining to unallowable items and on that 
portion of interest paid which is reduced or offset by interest income; 
(R) Insurance premiums pertaining to items of unallowable cost; 
(S) Accrued expenses that are not a legal obligation of the provider or are not 
clearly enumerated as to dollar amount. This includes any form of profit sharing 
and the accrued liabilities of deferred compensation plans; 
(T) Planning and evaluation expenses for the purchase of depreciable assets, 
except where purchases are actually made and the assets are put into service in 
providing waiver services; 
(U) Mileage expense which exceeds the current reimbursement rate set by the 
Texas Legislature for state employee travel or expenses exceeding actual cost of 
public transportation;
(V) Costs of purchases from a related party which exceed the original cost to 
the related party; 
(W) Out-of-state travel expenses, except for provision of waiver services that 
may include training and quality assurance functions;
(X) Legal and other costs associated with litigation between a provider and 
state or federal agencies, unless the litigation is decided in the provider's 
favor,
(Y) Contributions to self-insurance funds which do not represent payments based 
on current liabilities; 
(Z) Any expense incurred because of imprudent business practices;
(AA) Expenses which cannot be adequately documented;
(BB) Expenses not reported according to the instructions on the cost report; 
(CC) Expenses not allowable under other pertinent federal, state, or local laws 
and regulations; and 
(DD) Federal, state, and local income taxes and any expenses related to 
preparing and filing income tax forms.

sec.355.505. Reimbursement Methodology for the Community Living Assistance and 
Support Services Waiver Program - a 1915(c) Medicaid Home and Community-based 
Waiver for Persons With Related Conditions: 1997 and Subsequent Cost Reports.
(a)-(c) (No change.)
(d) Waiver reimbursement determination methodology. 
(1)-(3) (No change.)
(4) Reimbursement determination process. Recommended unit of service 
reimbursements are determined in the following manner. 
(A) Unit or service reimbursement for habilitation, nursing, physical therapy, 
occupational therapy, speech pathology, and psychological services are 
determined in the following manner: 
(i) Total allowable costs for each provider will be determined by analyzing the 
allowable historical costs reported on the cost report and other pertinent cost 
survey information. 
(ii) Total allowable costs are reduced by the amount of <nl> the<ol> 
administrative expense fee, <nl>requisition fee, and reassessment fee<ol> 
revenues <nl>accrued for the reporting period.<ol>[ received through a voucher 
payment system.] 
(iii)-(vii) (No change.)
(B)-(D) (No change.)
(e) (No change.)
<nl>(f)<ol> <nl> Requisition fees. Requisition fees are reimbursements paid to 
the CLASS direct service agency contract-ed providers for their efforts in 
acquiring adaptive aids and minor home modifications for CLASS participants. 
Reimbursement for adaptive aids and minor home modifications will vary based on 
the actual cost of the adaptive aid and minor home modification. Reimbursements 
are determined using a method based on modeled projected expenses which are 
developed by using data from surveys; cost report data from similar programs; 
consultation with other service providers and/or professionals experienced in 
delivering contracted services; and/or other sources. <ol>
[(f) Allowable and unallowable costs. 
[(1) Providers must follow the guidelines in determining whether a cost is 
allowable or unallowable as specified in sec.335.102 and sec.355.103 of this 
title (relating to General Principles of Allowable and Unallowable Costs, and 
Specifications for Allowable and Unallowable Costs) as well as the following 
provisions.
[(2) Participant room and board expenses are not allowable, except for those 
related to respite care. 
[(3) The cost of adaptive aids and home modifications are not allowable. 
Allowable labor costs associated with acquiring adaptive aids and home 
modifications should be reported in the cost report. Any item purchased for 
participants in this program and reimbursed through a voucher payment system is 
unallowable. Refer to sec.355.103(17)(K) of this title (relating to 
Specifications for Allowable and Unallowable Costs).
<nl>(g)<ol> <nl> Reassessment fees. Reassessment fees are reimbursements paid to 
CLASS direct service agency contracted providers for performing annual 
reassessments. Reimbursements are determined using a method based on modeled 
projected expenses which are developed by using data from surveys; cost report 
data from similar programs, consultation with other service providers and/or 
professionals experienced in delivering contracted services; and/or other 
sources. <ol>
[(g) Authority to determine reimbursement. The authority to determine 
reimbursement is specified in sec.355.101 of this title (relating to 
Introduction).] 
<nl>(h)<ol> <nl> Allowable and unallowable costs. <ol>
<nl>(1)<ol> <nl>Providers must follow the guidelines in determining whether a 
cost is allowable or unallowable as specified in sec.355.102 and sec.355.103 of 
this title (relating to General Principles of Allowable and Unallowable Costs, 
and Specifications for Allowable and Unallowable Costs) as well as the following 
provisions. <ol>
<nl>(2) <ol> <nl>Participant room and board expenses are not allowable, except 
for those related to respite care. <ol>
<nl>(3)<ol> <nl> The cost of adaptive aids and home modifications is not 
allowable. Allowable labor costs associated with acquiring adaptive aids and 
home modifications should be reported in the cost report. Any item purchased for 
participants in this program and reimbursed through a voucher payment system is 
unallowable. Refer to sec.355.103(b)(17)(K) of this title (relating to 
Specifications for Allowable and Unallowable Costs). <ol>
[(h) Reporting revenue. Revenues must be reported on the cost report in 
accordance with sec.355.104 of this title (relating to Revenues).] 
<nl>(i)<ol> <nl> Authority to determine reimbursement. The authority to 
determine reimbursement is specified in sec.355.101 of this title (relating to 
Introduction). <ol>
[(i) Reviews and field audits of cost reports. DHS staff perform desk reviews or 
field audits on all contracted providers. The frequency and nature of the field 
audit are determined by DHS to ensure the fiscal integrity of the program. Desk 
reviews and field audits will be conducted in accordance with 355.106 of this 
title (relating to Basic Objectives and Criteria for Audit and Desk Review of 
Cost Reports), and providers will be notified of the results of a desk review or 
a field audit in accordance with sec.355.107 of this title (relating to 
Notification of Exclusions and Adjustments). Providers may request an informal 
review and, if necessary, an administrative hearing to dispute an action taken 
by DHS under sec.355.110 of this title (relating to Informal Reviews and Formal 
Appeals).] 
<nl>(j)<ol> <nl> Reporting revenue. Revenues must be reported on the cost report 
in accordance with sec.355.104 of this title (relating to Revenues). <ol>
[(j) Reporting requirements. The program director's full salary is to be 
reported on the line item of the cost report designated for the director.] 
<nl>(k)<ol> <nl> Reviews and field audits of cost reports. DHS staff perform 
desk reviews or field audits on all contracted providers. The frequency and 
nature of the field audit are determined by DHS to ensure the fiscal integrity 
of the program. Desk reviews and field audits will be conducted in accordance 
with sec.355.106 of this title (relating to Basic Objectives and Criteria for 
Audit and Desk Review of Cost Reports), and providers will be notified of the 
results of a desk review or a field audit in accordance with sec.355.107 of this 
title (relating to Notification of Exclusions and Adjustments). Providers may 
request an informal review and, if necessary, an administrative hearing to 
dispute an action taken by DHS under sec.355.110 of this title (relating to 
Informal Reviews and Formal Appeals). <ol>
<nl>(l)<ol> <nl> Reporting requirements. The program director's full salary is 
to be reported on the line item of the cost report designated for the director. 
<ol>
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on February 9, 1998.
TRD-9801839
Marina Henderson
Executive Deputy Commissioner
Health and Human Services Commission
Earliest possible date of adoption: March 22, 1998
For further information, please call: (512) 424-6576

TITLE 4. AGRICULTURE
PART I. Texas Department of Agriculture
CHAPTER 3. Boll Weevil Eradication Program
SUBCHAPTER E. Creation of Eradication Zones
4 TAC sec.3.110
The Texas Department of Agriculture (the department) proposes an amendment to 
sec.3.110, concerning the Southern High Plains Boll Weevil Eradication Zone The 
amendment is proposed to change the name of the area designated as the Southern 
High Plains Boll Weevil Eradication Zone to the Western High Plains Boll Weevil 
Eradication Zone. The name change is proposed, upon the request of the Southern 
High Plains Boll Weevil Eradication Zone Interim Advisory Committee, to avoid 
confusion due to the current name of the zone being similar to the existing 
Southern High Plains/Caprock zone, and to more accurately describe the 
geographical area included in the designated zone. All of the area currently 
included in the Southern High Plains Zone will be designated as the Western High 
Plains Boll Weevil Eradication Zone. Katie Dickie Stavinoha, special assistant 
for producer relations, has determined that for the first five-year period the 
section is in effect there will be no fiscal implications for state or local 
government as a result of enforcing or administering the section. 
Ms. Stavinoha also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
sections will be less confusion among cotton growers and the public in regards 
to the area covered by the zone. There will be no effect on small businesses. 
There is no anticipated economic cost to persons required to comply with the 
amendment as proposed. 
Comments on the proposal may be submitted to Katie Dickie Stavinoha, Special 
Assistant for Producer Relations, P.O. Box 12847, Austin, Texas 78711, and must 
be received no later than 30 days from the date of the publication of this 
proposal in the Texas Register.
The amendment is proposed under the Texas Agriculture Code, sec.74.1042, which 
provides the commissioner of agriculture with the authority, by rule, to 
designate an area of the state as a proposed boll weevil eradication zone; and 
Senate Bill 1814, 75th Legislature, 1997, sec.1.27(d), which provides the 
commissioner of agriculture with the authority to by rule divide a statutory 
zone and fairly apportion any debt to each portion of the divided zone. 
The codes affected by the proposal are the Texas Agriculture Code, Chapter 74. 

sec.3.110.<nl>Western<ol> [Southern] High Plains Boll Weevil Eradication Zone.
The <nl>Western<ol> [Southern] High Plains Boll Weevil Eradication Zone shall 
consist of the following area originally included as a part of the Southern High 
Plains/Caprock Eradication Zone described at the Texas Agriculture Code, 
sec.74.1021(e): all of Andrews, Gaines and Yoakum counties; all of Terry County 
except for all land north of a line 1.25 miles south of the Hockley County line 
from FM 303 east to Highway 385 and all land north and east of a line with 
boundaries of County Road 230, County Road 525 also known as Cemetery Road, and 
County Road 280 to the Lynn County line; and all of Lynn County except for all 
land north and east of a line 5 miles north of Hwy 380 following County Road 18 
that extends from the Terry County line east for 10 miles, then turns south to 
Hwy 380, and runs east to the intersection of FM 212 before turning south to the 
Borden County line. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on February 9, 1998.
TRD-9801831
Dolores Alvarado Hibbs
Deputy General Counsel
Texas Department of Agriculture
Earliest possible date of adoption: March 22, 1998
For further information, please call: (512) 463-7541

TITLE 10. COMMUNITY DEVELOPMENT
PART V. Texas Department of Economic Development
CHAPTER 176.Enterprise Zone Program
10 TAC sec.sec.176.1-176.4, 176.7, 176.8, 176.10, 176.11
The Texas Department of Economic Development (department) proposes amendments to 
sec.sec.176.1-176.4, 176.7, 176.8, 176.10, and 176.11, relating to the Texas 
Enterprise Zone Program. 
The proposed amendments to sec.176.1 change the name of the department to 
reflect the abolishment of the Texas Department of Commerce by Senate Bill 932 
of the 75th Legislature, the transfer of that agency's functions to the 
department, effective September 1, 1997, and the replacement of the Texas 
Department of Commerce Policy Board with the governing board of the department.
The proposed amendments further change legal citations to reference the correct 
sections of the Government Code and the Texas Administrative Code and change the 
name of the division that administers the program within the department.
The proposed amendments to sec.176.2 change legal citations to correctly 
reference sections of the Texas Administrative Code. Section 176.2(b)(5), 
concerning a qualified hotel project, is being amended to define the application 
requirements for hotel projects and to conform the rule to the Enterprise Zone 
Act, sec.2303.003 and sec.2303.5055. Section 176.2(b)(6)(A)(i), relating to 
enterprise project certifications, is being amended to eliminate contradictory 
language and to add clarification. Section 176.2(d) is being amended to further 
define the fee structure for a name change and assumption of an enterprise 
project. This section is also being amended to include a nonrefundable fee to 
recover the department's cost of providing direct technical assistance to 
enterprise projects relating to the adjustment of the total number of jobs 
allocated in their original project application. 
The proposed amendments to sec.176.3(e) allow the inclusion of an industrial 
park in an enterprise zone without including unemployment and poverty data for 
the block groups included in the park if no other area of the block group 
outside the industrial park is included. This would benefit the communities in 
that the Enterprise Zone program could be used as an incentive to attract 
businesses in the industrial park, and thereby providing employment 
opportunities for enterprise zone residents. The proposed amendments to 
sec.176.3(f)(2), establish guidelines for applicants to submit their application 
after the nominating ordinance or order is passed. This language is being added 
to define the time frame in which nominating ordinances or orders are submitted. 
The proposed amendments to sec.176.4 clarify the information needed in a 
nominating ordinance or order when applying for an enterprise zone designation. 
The proposed amendments to sec.176.4(a)(2)(B), clarify the identification of the 
designated representative and liaison to communicate and negotiate with the 
department. The proposed amendments to sec.176.4(a)(5)(A), add identification of 
industrial parks, when applicable, as a requirement when mapping out the 
proposed area of an enterprise zone. The proposed amendment to 
sec.176.4(a)(6)(B) adds the effective date on which the term of reinvestment 
zones became the same as state enterprise zone designations. 
The proposed amendments to sec.176.7 add language setting forth job creation and 
job retention requirements in order to clarify existing program policies used to 
determine whether or not a project qualifies as a retention project. The 
proposed amendments to sec.176.8(c)(2), correct the legal citation to the Texas 
Enterprise Zone Act. The proposed amendments to sec.176.8(d), add language 
allowing enterprise projects to adjust the total number of jobs allocated as a 
result of their original project application. This process would benefit the 
related community and enterprise project because it may be used as an incentive 
for businesses to continue to create additional jobs and to further expand, it 
would reward successful companies, and it may prevent the community from using 
one of the limited 65 project designations on a project that is already 
approved. 
The proposed amendments to sec.176.10(b)(1) clarify enterprise project 
application deadlines. The proposed amendments to sec.176.10(b)(2)(A) allow 
communities to have no more than three projects designated and the ability to 
gain three bonus projects for a total allocation of six. The proposed change 
will encourage the communities to nominate strong projects in order to score 
well and earn a bonus project. The proposed amendments to sec.176.10(b)(2)(B) 
clarify the circumstances under which a governing body may receive a bonus 
enterprise project and to further clarify where bonus projects can be used. This 
section has also been amended to reflect the availability of regular and bonus 
designations. 
The proposed amendments to sec.176.11 reflect the repeal of the bi-annual cost-
benefit analysis reporting requirement by House Bill 2906 of the 75th 
Legislature. 
James Albright, Director of Finance, has determined that for each year of the 
first five years that the amendments will be in effect there will be no 
additional cost, no reduction in costs, and no loss or increase in revenue to 
the state or to local governments as a result of enforcing or administering the 
amendments. The probable economic cost to persons required to comply with the 
amendments is any cost incurred by businesses in preparing and submitting 
applications. Costs to businesses receiving enterprise project designation will 
be significantly offset by the benefits of the program. 
Mr. Albright also has further determined that the public benefit that can be 
expected for each year of the first five years that the amendments are in effect 
is that local communities participating in the Enterprise Zone Program may 
realize the creation and retention of jobs and capital investment by businesses 
within the community. 
Written comments on the proposed amendments may be mailed to Robin Abbott, 
General Counsel, Texas Department of Economic Development, P.O. Box 12728, 
Austin, Texas 78711-2728; delivered to 1700 Congress Avenue, Suite 136, Austin, 
Texas 78701; or faxed to (512) 936-0415. Comments received more than 30 days 
after publication of the proposed amendments will not be considered by the 
department. 
The amendments are proposed pursuant to Government Code, sec.481.0044(a), 
authorizing the governing board of the department to adopt rules for the 
administration of department programs, Government Code, sec.2303.051(c) 
directing the department to adopt rules to carry out the Enterprise Zone 
Program, and Government Code, Chapter 2001, Subchapter B, setting forth the 
agency rulemaking process.
Government Code, Chapter 2303, is affected by these amendments. 

sec.176.1.General Provisions.
(a) Introduction. Pursuant to the authority granted by the Texas Enterprise Zone 
Act, Texas Government Code, Chapter 2303, as amended, and the Administrative 
Procedure Act, Chapter 2001, Subchapter B, Rulemaking, Texas Government Code, as 
amended, the Texas Department of <nl>Economic Development <ol> [Commerce] 
prescribes the following sections regarding practice and procedure before the 
department in the administration and implementation of the Enterprise Zone 
Program. 
(b) (No change.)
(c) Definition of terms. The following words and terms, when used in this 
chapter, shall have the following meanings, unless the context clearly indicates 
otherwise. 
(1)-(5) (No change.)
(6) Board--The <nl>Governing<ol> [Policy] Board of the Texas Department of 
<nl>Economic Development<ol> [Commerce
(7) (No change.)
(8) Department--The Texas Department of <nl>Economic Development<ol> [Commerce]. 
(9)-(20) (No change.)
(21) Qualified business--A person, including a corporation or other entity that 
the department, for purposes of state benefits under the Act, and a governing 
body, for purposes of local benefits, certifies to have met the following 
criteria: 
(A)-(C) (No change.)
(D) as a builder that has demonstrated proficiency in residential construction, 
financial stability, and participation in a 10-year insured warranty program in 
accordance with the Act and sec.176.10 (f) of this title (relating to 
<nl>Approval Standards for Certification of a Builder as a Qualified 
Business<ol> [Certification of Qualified Business]); or 
(E) (No change.)
(22)-(27) (No change.)
(d)-(e) (No change.)
(f) Examination of records. Any party requesting the examination of records 
pursuant to the Texas <nl>Public Information<ol> [Open Records] Act, Texas 
Government Code, Chapter 552, shall indicate in writing the specific nature of 
the documents to be viewed, and if photocopying is desired, the prevailing 
standard fee of the department will be charged to cover the cost of the request. 
(g) Written communication with the department. Applications and other written 
communications to the department should be addressed to the attention of the 
Texas Enterprise Zone Program, Business <nl>Services Division<ol> [Development 
Division], Texas Department of <nl> Economic Development<ol> [Commerce], P. O. 
Box 12728, Austin, Texas 78711-2728.

sec.176.2.Fling Requirements for Applications and Claims.
(a) (No change.)
(b) Filing.
(1)-(3) (No change.)
(4) Enterprise projects. Applications for enterprise project designation may be 
filed on or before, but no later than, quarterly deadlines published by the 
department in sec.176.10 (b) (1) of this title, (relating to <nl>Approval 
Standards<ol> [Application Contents for an Enterprise Project]) for 
consideration. Applications received after a published deadline will not be 
reviewed and considered for designation until after the next published deadline. 
The applicant shall file with the department an original of an application for 
designation as an enterprise project. 
(5) Qualified hotel project. <nl>Applications for a qualified hotel project 
designation may be filed on any day. The applicant must file with the department 
a certified copy of a resolution nominating the hotel project and a description 
or summary of the project detailing the nature of the business, estimated number 
of new jobs to be created, and the projected capital investment. To permit the 
department to designate the applicant as a qualified hotel project, the project 
shall be deemed to have met all qualifications under the Act, sec.2303.003 and 
sec.2303.5055. Furthermore, the qualified hotel project designation<ol> [A hotel 
must apply to the department in the form provided by the department to be 
designated a qualified hotel project. However, a qualified hotel project that 
meets the conditions under the Act, sec.2303.003 (8), shall be deemed to have 
met the employment, income, and other criteria of a qualified business and an 
enterprise project and the enterprise zone in which the qualified hotel project 
is located shall be deemed to have met all qualifications of the Act to permit 
the department to designate the qualified hotel project as an enterprise 
project. The enterprise project designation or new permanent jobs created by a 
qualified hotel project ] shall not be considered in determining the number of 
enterprise projects that the department may approve pursuant to the other 
provisions of this Act.
(6) Certifications. 
(A) Enterprise projects. 
(i) [Requests for job certifications for designated enterprise projects may be 
filed on any day with the department annually or semiannually at the discretion 
of the entity holding designated project status.] Requests for job 
certifications [for enterprise projects] may be filed with the department on any 
day [after the last day following the state fiscal biennium in which the project 
was designated]. <nl>A job certification request may be made annually or 
semiannually.<ol> 
(ii)-(iii) (No change.)
(B) Qualified business. 
(i)-(ii) (No change.)
(iii) Through the applicable governing body or bodies to the department, a 
residential builder may request certification as a qualified business to 
construct single or multifamily housing in the governing body's or bodies' 
enterprise zone even though the builder's principle office or headquarters is 
located in the state of Texas outside the zone. The governing body or bodies 
shall adopt criteria and guidelines to advance the Act and zone objectives 
including establishing a minimum commitment of the number of housing units that 
are to be constructed in an enterprise zone within its jurisdiction(s) within a 
specific period of time by a builder or group of builders before requesting 
state qualified business status. A builder or group of builders that form a 
consortium for the purpose of constructing housing in an enterprise zone that 
has met requirements established by the local governing body or bodies may be 
nominated for enterprise project designation by the local governing body or 
bodies. In considering such nominations the governing body or bodies shall give 
preference to projects that address affordable housing as set forth in the 
criteria established by the governing body or bodies. The application for 
certification as a qualified business for state benefits may be submitted to the 
department on any day in a form prescribed by the department. The applicable 
governing body or bodies may certify a residential builder as a qualified 
business to receive local benefits in connection with housing construction 
activity in an enterprise zone within its or their jurisdiction without making 
an application to the department to assure compliance with the Act, 
<nl>sec.2303.402<ol> [sec.2303.401]. 
(C)-(D) (No change.)
(c) (No change.)
(d) Fees. A nonrefundable fee to recover the department's cost of providing 
direct technical assistance relating to the enterprise zone program must 
accompany an application to the department in the amount of:
(1)-(3) (No change.)
(4) $300 for application to change <nl>name or<ol> [/] assume enterprise project 
designation as defined in sec.176.8(b) and sec.176.8 (c) of this title (relating 
to <nl>Application Contents for an Enterprise Project<ol> [Approval Standards]); 
<nl>(5)<ol> <nl> $300 to adjust the total number of new jobs as specified in the 
original application as defined in Texas Government Code, sec.2303.405 (relating 
to Application Contents for an Enterprise Project); <ol> 
<nl>(6)<ol> [(5)] $300 for designation as a recycling market development zone; 
<nl>(7)<ol> [(6)] $500 for residential builder certification as a qualified 
business for a three-year period; 
<nl>(8)<ol> [(7)] $300 for certification as a neighborhood enterprise 
association. The fee must be submitted in the form of a cashiers check made 
payable to the Texas Department of <nl>Economic Development<ol>[Commerce]/Texas 
Enterprise Zone Program.
(e)-(g) (No change.)

sec.176.3. Eligibility Requirements for Designation of an Enterprise Zone. 
(a)-(d) (No change.)
(e) Documentation. For the purpose of showing that an area is qualified to be 
designated as an enterprise zone, the applicant must submit documentation, 
including the source, methodology and certification of the data. The authorized 
data source for population estimates is the State Data Center. The authorized 
data source for labor force data is the Texas Workforce Commission. Data will be 
considered current from the State Data Center and the Texas Workforce Commission 
if they are the most recently published estimates or if the enterprise zone 
application containing the data is received by the department before the 61st 
day after the date revised estimates of that data are published. <nl>An 
industrial park may be included as part of the enterprise zone without averaging 
in the unemployment and poverty data. However, data will be required if part of 
the zone includes an area which is outside the industrial park but within the 
same census area. The industrial park may not exceed 25.0% of the proposed zone 
area. To show an area has been designated as an industrial park the applicant 
must include documentation of official action taken by the governing body.<ol> 
(1)-(9) (No change.)
(f) Citizen participation. The department will not approve the designation of an 
area as an enterprise zone unless: 
(1) (No change.)
(2) notice of such hearing is given to the public by publishing once in a 
newspaper of general circulation in the municipality or county or combination of 
municipalities or counties and posting a copy of the same at the city hall or 
county courthouse not later than seven days prior to the date of the hearing. 
Such notice shall contain a description of the area proposed by the municipality 
or county or combination of municipalities or counties to be designated as an 
enterprise zone, and the date, time, and location of such hearing. The 
description of the area should be worded so that residents of the area and other 
interested parties may reasonably identify the area to be discussed at the 
public hearing. The notice shall also encourage all interested parties, 
including residents of the proposed zone to present their views at the hearing. 
The hearing must include a presentation on the proposed location of the zone and 
the provisions for any tax or other incentives applicable to business 
enterprises in the zone. A municipality or county or combination of 
municipalities or counties must adopt the enterprise zone nominating ordinance 
or order within 180 calendar days of the date the last public hearing was held. 
<nl>Further, the application for zone designation must be received by the 
department within 90 calendar days of the date of final approval of the 
nominating ordinance or order, or a new public hearing must occur and a new 
nominating ordinance or order must be enacted.<ol> 
(g) (No change.)

sec.176.4. Application Contents for Designation of Enterprise Zones.
(a) Each application for designation of an enterprise zone, application to amend 
the boundaries of a designated enterprise zone, or for designation of a 
recycling market development zone must be typed directly on the form provided by 
the department and must include all applicable attachments as specified in the 
application. 
(1) (No change.)
(2) The applicant. If a joint application is being submitted by a municipality 
and county, or a combination of municipalities and/or counties, the information 
must be provided for each entity. The application must contain the following 
information and documentation concerning the applicant: 
(A) (No change.)
(B) a certified copy of the ordinance or order as appropriate of the governing 
body of the applicant nominating the area within its jurisdiction as an 
enterprise zone under the Act, containing the information set forth in the Act, 
sec.2303.104, and identifying by job title the liaison[,] <nl>or<ol> liaisons[,] 
<nl>and<ol> representative or representatives in accordance with paragraph (1) 
of this subsection. The ordinance or order must specify any incentives to be 
provided by the municipality or county to business enterprises in the zone, 
including the conditions and circumstances governing the sale of surplus public 
buildings or vacant public lands at less than fair market value and the public 
purpose that will be achieved by the sale. At least three incentives must be 
offered in the zone which are not offered elsewhere throughout the jurisdiction. 
At least one incentive must be financial in nature. The ordinance or order may 
nominate more than one zone, but separate applications must be submitted for 
each zone; 
(C) (No change.)
(3)-(4) (No change.)
(5) The zone. The application must contain the following information and 
documentation concerning the proposed zone: 
(A) a map of the proposed enterprise zone location which clearly shows zone 
boundaries, including existing streets and highways, rail, [and] air facilities, 
<nl>and industrial parks<ol>; 
(B)-(F) (No change.)
(6) The local business incentives. 
(A) (No change.)
(B) For the purposes of tax abatement under the Property Redevelopment and Tax 
Abatement Act (Tax Code, Chapter 312), an enterprise zone designated after 
August 28, 1989 is considered to be a reinvestment zone without further 
designation and <nl>effective September 1, 1995<ol> the reinvestment zone is 
effective for the term of the enterprise zone. In accordance with Chapter 
312.204 and 312.206 of the Tax Code, property tax abatement agreements between 
the governing body of each taxing unit and property owners in an enterprise 
zone, may, but are not required to, contain terms that are identical to those 
contained in the agreement with the municipality, county or both. The terms of 
the agreement that may vary are the portion of the property that is to be exempt 
from taxation under the agreement and the duration of the agreement.
(C) (No change.)
(7) (No change.)
(b)-(c) (No change.)

sec.176.7. Requirements for Designation of Enterprise Projects.
(a) The department may not designate a nominated qualified business as an 
enterprise project unless it determines that: 
(1) the business meets the requirements set forth in the Act, <nl> 
sec.2303.402<ol> [sec.2303.401] and this chapter; 
(2)-(5) (No change.)
(b) (No change.)
<nl>(c)<ol> <nl> For job creation a business must be seeking to create new jobs, 
or for an existing business seeking to expand and increase their current level 
of employment in Texas. The program, however, does not allow benefit for moving 
existing jobs from one Texas city to another within the state. <ol>
<nl>(d)<ol> <nl> For job retention a business must submit documentation and 
receive prior approval of documentation in order to qualify for using one of the 
following criteria: <ol>
<nl>(1)<ol> <nl> that permanent employees will be permanently laid off; or <ol>
<nl>(2)<ol> <nl> the business will permanently close down; or <ol>
<nl>(3)<ol> <nl> the business will relocate out of state; or <ol>
<nl>(4)<ol> <nl> a 10% increase in production capacity will occur; or <ol>
<nl>(5)<ol> <nl> a 10% decrease in overall cost per unit produced will occur. 
<ol>
<nl>(6)<ol> <nl> In any case, for job retention, the business must maintain the 
same level of employment that existed 90 days prior to the date of 
application.<ol>

sec.176.8. Application Contents for Designation of an Enterprise Project.
(a)-(b) (No change.)
(c) A lessee or purchaser of a qualified business which has been designated as 
an enterprise project may apply to the department to assume the enterprise 
project designation of the business leased or purchased. The request must be 
made through the appropriate enterprise zone governing body or bodies which must 
take official action, in the form of a resolution, approving of the assumption 
of the enterprise project designation by the lessee or purchaser. The resolution 
should be submitted along with the following information to the department: 
(1) (No change.)
(2) a written certification from the lessee or purchaser on a form to be 
provided by the department that the lessee or purchaser will be a qualified 
business under the Act, <nl>sec.2303.402<ol> [sec.2303.401]; and 
(3)-(4) (No change.)
<nl>(d)<ol> <nl> A designated enterprise project may apply to the department for 
an adjustment to the total number of jobs allocated in their original 
application, in accordance with the Act, sec.2303.407 (regarding Allocation of 
Jobs Eligible for Tax Refund). The enterprise project may not make more than one 
adjustment to the job allocation during the five year designation of the 
project. The request can be made any time during the five year designation 
period. The adjustment of a project designation does not extend the original 
designation period. To receive department approval for an adjustment to the job 
allocation, the project must submit through the applicant governing body or 
bodies: <ol>
<nl>(1)<ol> <nl> a written request from the applicant governing body or bodies 
to adjust the total number of jobs originally allocated to the enterprise 
project operating in an enterprise zone within its jurisdiction; <ol> 
<nl>(2)<ol> <nl> a written explanation by the designee of the reasons for the 
adjustment and any changes to the commitments made by the business in the 
original enterprise project application, if applicable; <ol>
<nl>(3)<ol> <nl> on a form provided by the Department, the designee must provide 
a breakdown of the types of new jobs by classification or title and the salary 
range or hourly-rate for each position for which benefit is sought (Note: State 
sales and use tax paid on qualifying items and adjusted jobs created within 90 
working days prior to the date of application may be considered for refund); and 
<ol>
<nl>(4)<ol> <nl>designee must submit documentation that original commitments 
i.e. the projected number of jobs and investment have been met or will be met as 
specified in their original application.<ol>

sec.176.10.Approval Standards.
(a) (No change.)
(b) Approval standards for designation of enterprise projects. The department 
shall designate qualified businesses as enterprise projects on a competitive 
basis. Applications for designation of enterprise projects will be accepted on a 
quarterly basis on or before the following application deadlines: 
(1) [During the state fiscal biennium beginning September 1, 1995, the] 
<nl>The<ol> application deadline for receipt of enterprise project applications 
by the department is 5:00 p.m., Austin, Texas time, on the first business day of 
every third month beginning with September 1995. The department may designate no 
more than 65 enterprise projects during any fiscal biennium, as specified by the 
Act, sec.2303.403.
(2) The department will designate qualified businesses as enterprise projects 
under the following conditions: 
(A) Each enterprise zone governing body may not have more than <nl>three<ol> 
[four] qualified businesses designated as enterprise projects in enterprise 
project eligible enterprise zones within its jurisdiction during the state 
fiscal biennium beginning September 1, 1995. The enterprise project designations 
will be granted by the department on a first-come, first-served basis, subject 
to the limitations in this section and based upon the availability of enterprise 
project designations. Although enterprise project designations will be awarded 
on a first-come, first-served basis, applications will be scored for the purpose 
of awarding bonus enterprise project designations. 
(B) Each enterprise project application will be scored against all other 
enterprise project applications <nl>approved during a<ol> [received each] 
quarterly deadline, as specified in sec.176.10 (b)(1) of this chapter. If an 
enterprise project application scores within the top quartile (25%) of all the 
other applications <nl>approved in<ol> [submitted on] a quarterly deadline, the 
nominating enterprise zone may nominate a qualified business for a bonus 
enterprise project designation on any subsequent quarterly deadline within the 
state fiscal biennium. Designations will be awarded only if enterprise project 
designations are available. The bonus enterprise project applications will be 
scored in the same manner as all other enterprise project applications received 
on each quarterly deadline. If a bonus project application scores within the top 
quartile (25%) of all the bonus and regular applications received on a quarterly 
deadline, the nominating enterprise zone may nominate an additional bonus 
enterprise project for designation on any subsequent quarterly deadline within 
the same fiscal biennium. The bonus enterprise project designations may only be 
located <nl>in an enterprise zone within the governing body's jurisdiction<ol> 
[in the enterprise zone] from which the bonus enterprise project designation was 
earned, subject to enterprise project availability. Each application submitted 
to the department will be evaluated on the commitments made by the community and 
qualified business as specified under the Act, sec.2303.405. In no case may an 
enterprise zone governing body have a combined total of more than six enterprise 
project designations, including regular and bonus designations, during the state 
fiscal biennium beginning September 1, 1995. 
(C) (No change.)
(3) (No change.)
(c)-(i) (No change.)

sec.176.11.Reporting Requirements.
(a) Annual reports. 
(1) Each municipality, county, or combination of municipalities and/or counties 
that authorized the creation of an enterprise zone shall submit an annual report 
to the department on or before October 1 of each year. The report must be in a 
form prescribed by the department and contain the information listed in the Act, 
sec.2303.205 (c). The information in the report will be used by the department 
to compile an annual report to the governor, legislature, and the Legislative 
Budget Board by December 1 as required by the Act. [The information will also be 
used to compile a bi-annual cost benefit analysis, as required by the Act, 
sec.2303.0525.] If such report is not received by the deadline, the department 
may, following a public hearing, consider termination of the designation of the 
enterprise zone. 
(2) (No change.)
(b) Other reports or documents. 
(1) (No change.)
[(2) Bi-annual cost-benefit analysis of program. Not later than December 1 of 
each even-numbered year, the department shall prepare a cost-benefit analysis of 
the program and submit it to the state auditor for review and comment on the 
methodology and conclusions of the analysis. Before each regular legislative 
session convenes, the state auditor shall submit the analysis and the state 
auditor's comments on the analysis to the governor, the lieutenant governor, and 
the speaker of the house of representatives.] 
<nl>(2)<ol> [(3)] No later than September 1 of each year, a neighborhood 
enterprise association shall furnish an annual statement to the applicable 
governing body or bodies on the programmatic and financial status of any 
approved project and an audited financial statement of the project. The 
governing body or bodies shall include information about all reports filed by 
the neighborhood enterprise association in its annual report on the applicable 
enterprise zone due the department by each October 1 during the zone designation 
period. 
Filed with the Office of the Secretary of State, on February 5, 1998.
TRD-9801762
W. Lane Lanford
Chief Administrative Officer
Texas Department of Economic Development
Earliest possible date of adoption: May 23, 1998
For further information, please call: (512) 936-0181

TITLE 16. ECONOMIC REGULATION
PART II. Public Utility Commission of Texas
CHAPTER 23. Substantive Rules
Telephone
16 TAC sec.23.93
(Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Public Utility 
Commission of Texas or in the Texas Register office, Room 245, James Earl Rudder 
Building, 1019 Brazos Street, Austin.)
The Public Utility Commission of Texas (PUC) proposes the repeal of sec.23.93, 
relating to Distance Learning, Information Sharing Programs, and Interactive 
Multimedia Communications. The Appropriation Act of 1997, HB 1, Article IX, 
Section 167 (Section 167) requires that each state agency review and consider 
for readoption each rule adopted by that agency pursuant to the Government Code, 
Chapter 2001 (Administrative Procedure Act). Such reviews shall include, at a 
minimum, an assessment by the agency as to whether the reason for adopting or 
readopting the rule continues to exist. The PUC held three workshops to conduct 
a preliminary review of its rules. As a result of these workshops, the PUC is 
reorganizing its current substantive rules located in 16 Texas Administrative 
Code (TAC) Chapter 23 to: (1) satisfy the requirements of Section 167; (2) 
repeal rules no longer needed; (3) update existing rules to reflect changes in 
the industries regulated by the commission; (4) do clean-up amendments made 
necessary by changes in law and commission organizational structure and 
practices; (5) reorganize rules into new chapters to facilitate future 
amendments and provide room for expansion; and (6) reorganize the rules 
according to the industry to which they apply. As a result of this 
reorganization, sec.23.93 will be duplicative of the proposed new section in 
Chapter 26 of this title relating to Substantive Rules Applicable to 
Telecommunications Service Providers. Project Number 18700 has been assigned to 
the proposed repeal of sec.23.93. 
Tammy Cooper, senior attorney, Office of Policy Development, has determined that 
for each year of the first five-year period the repeal is in effect there will 
be no fiscal implications for state or local governments as a result of 
enforcing or administering the repeal. 
Ms. Cooper has determined that for each year of the first five years the repeal 
is in effect, the public benefit anticipated as a result of the repeal will be 
the elimination of a duplicative rule. There will be no effect on small 
businesses as a result of repealing this section. There is no anticipated 
economic cost to persons as a result of repealing this section. 
Ms. Cooper has also determined that for each year of the first five years the 
repeal is in effect there will be no impact on employment in the geographical 
area affected by the repeal of this section. 
Comments on the proposed repeal (16 copies) may be submitted to the Filing 
Clerk, Public Utility Commission of Texas, 1701 North Congress Avenue, P.O. Box 
13326, Austin, Texas 78711-3326, within 10 days after publication. All comments 
should refer to Project Number 18700. 
This repeal is proposed under the Public Utility Regulatory Act, Texas Utilities 
Code Annotated sec.14.002 (Vernon 1998) (PURA), which provides the Public 
Utility Commission with the authority to make and enforce rules reasonably 
required in the exercise of its powers and jurisdiction. 
Cross Index to Statutes: Public Utility Regulatory Act sec.14.002. 
sec.23.93. Distance Learning, Information Sharing Programs, and Interactive 
Multimedia Communications.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 6, 1998.
TRD-9801705
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: March 22, 1998
For further information, please call: (512) 936-7308

CHAPTER 26. Substantive Rules Applicable to Telecommunications Service Providers
SUBCHAPTER G. Advanced Services
16 TAC sec.26.141
The Public Utility Commission of Texas proposes new sec.26.141, relating to 
Distance Learning, Information Sharing Programs, and Interactive Multimedia 
Communications. Project Number 18700 has been assigned to this proposed new 
rule. New sec.26.141 will replace corresponding sec.23.93 of this title 
(relating to Distance Learning, Information Sharing Programs, and Interactive 
Multimedia Communications). The specific change to this rule adds new subsection 
(c) in order to clarify the combination of state and federal discount programs 
for qualifying schools, libraries, and other consortia pursuant to this rule and 
sec.23.107 of this title (relating to Educational Percentage Discount Rates or 
E-Rates). The commission makes this change based on the recent ruling by the 
Federal Communications Commission (FCC), In the Matter of Federal-State Joint 
Board on Universal Service, CC Docket No. 96-45, Fourth Order on Reconsideration 
(December 30, 1997). In that order, the FCC determined that any federal discount 
should be applied prior to the application of any state discount. Therefore, the 
new language implements this ruling, and directs that federal educational 
percentage discount rates (E-rates) be applied prior to any applicable state 
discount. Further, any subsequent state discount should be applied based on the 
federal discount, not the full tariffed rate. 
The Appropriation Act of 1997, HB 1, Article IX, Section 167 (Section 167) 
requires that each state agency review and consider for readoption each rule 
adopted by that agency pursuant to the Government Code, Chapter 2001 
(Administrative Procedure Act). Such reviews shall include, at a minimum, an 
assessment by the agency as to whether the reason for adopting or readopting the 
rule continues to exist. The PUC held three workshops to conduct a preliminary 
review of its rules. As a result of these workshops, the PUC is reorganizing its 
current substantive rules located in 16 Texas Administrative Code (TAC) Chapter 
23 to: (1) satisfy the requirements of Section 167; (2) repeal rules no longer 
needed; (3) update existing rules to reflect changes in the industries regulated 
by the commission; (4) do clean-up amendments made necessary by changes in law 
and commission organizational structure and practices; (5) reorganize rules into 
new chapters to facilitate future amendments and provide room for expansion; and 
(6) reorganize the rules according to the industry to which they apply. 16 TAC 
Chapter 26 has been established for all commission substantive rules applicable 
to telecommunications service providers. The duplicative sections of Chapter 23 
will be proposed for repeal as each new section is proposed for publication in 
Chapter 26. 
Parties should note that the commission is considering a related matter in 
Investigation into the Interaction of Federal and State Discounts for Schools 
and Libraries Pursuant to Chapters 58 & 59 of PURA, Project Number 18723. The 
commission tentatively will address that project at its open meeting scheduled 
for February 25, 1998. 
Tammy Cooper, senior attorney, Office of Policy Development, has determined that 
for the first five years the section is in effect there will be no fiscal 
implications for state or local governments as a result of the enforcing or 
administering the sections. 
Ms. Cooper also has determined that for each year of the first five years the 
section is in effect, the public benefit anticipated as a result of enforcing 
this section will be the increased access by schools and libraries to new 
technologies and communications services due to lower costs of such services and 
the necessary infrastructure. 
There is no anticipated economic cost to persons who are required to comply with 
the section as proposed. The persons required to comply with this section will 
receive reimbursement for certain costs by the federal E-Rates discount program. 
For each year of the first five years the section is in effect, there will be no 
effect on small businesses as a result of enforcing the proposed section. Ms. 
Cooper has further determined that for the first five years the proposed section 
is in effect there will be no impact on the opportunities for employment in the 
geographic areas of Texas affected by implementing the requirements of the 
rules. 
Comments on the proposed rule (16 copies) may be submitted to Filing Clerk, 
Public Utility Commission of Texas, 1701 North Congress Avenue, P.O. Box 13326, 
Austin, Texas, 78701-3326, within 10 days after publication. All comments should 
refer to Project Number 18700. The commission invites specific comments 
regarding whether the reason for adopting the rule in Chapter 23 continues to 
exist in adopting its corresponding section in the new chapter. The commission 
also invites specific comments regarding the costs associated with, and benefits 
that will be gained by, implementation of the rule. The commission will consider 
the costs and benefits in deciding whether to adopt the rule. 
This rule is proposed under the Public Utility Regulatory Act, Texas Utilities 
Code Annotated sec.14.002 (Vernon 1998) (PURA), which provides the Public 
Utility Commission of Texas with the authority to make and enforce rules 
reasonably required in the exercise of its powers and jurisdiction. This rule is 
also proposed under the authority delegated to the Public Utility Commission 
pursuant to the Public Utility Regulatory Act, sec.sec.57.021 -57.025. 
Cross Index to Statutes: PURA sec.sec.14.002; 57.021; 57.022; 57.023; 57.024; 
57.025. 

sec.26.141. Distance Learning, Information Sharing Programs, and Interactive 
Multimedia Communications.
(a) Definitions. The following words and terms, when used in this section, shall 
have the following meanings, unless the context clearly indicates otherwise. 
(1) Distance learning. Instruction, learning, and training that is transmitted 
from one site to one or more sites by telecommunications services that are used 
by an educational institution predominantly for such instruction, learning, or 
training, including video, data, voice, and electronic information. 
(2) Educational institution. Accredited primary or secondary schools owned or 
operated by state and local government entities or by private entities; 
institutions of higher education as defined by the Education Code, 
sec.61.003(13); the Texas Education Agency, its successors and assigns; regional 
education service centers established and operated pursuant to the Education 
Code, Chapter 8; and the Texas Higher Education Coordinating Board, its 
successors and assigns. 
(3) Information sharing program. Instruction, learning, and training that is 
transmitted from one site to one or more sites by telecommunications services 
that are used by a library predominantly for such instruction, learning, or 
training, including video, data, voice, and electronic information. 
(4) Interactive multimedia communications. Real-time, two-way, interactive 
voice, video, and data communications conducted over networks that link 
geographically dispersed locations. This definition includes interactive 
communications within or between buildings on the same campus or library site. 
(5) Library. Public library or regional library system as defined by Government 
Code, sec.441.122, or a library operated by an institution of higher education 
or a school district. 
(b) Telecommunications services eligible for reduced rates.
(1) Any tariffed service, if used predominantly for distance learning purposes 
by an educational institution or information sharing program purposes by a 
library, is eligible for reduced rates, as set forth in this section. 
(2) A service is used predominantly for distance learning purposes by an 
educational institution or information sharing program purposes by a library 
when over 50% of the traffic carried, whether in video, data, voice, and/or 
electronic information, is identified for such use pursuant to the requirements 
of subsection (d)(1) of this section. 
(c) Coordination with federal discounts. For any discount received pursuant to 
sec.23.107 of this title (relating to Educational Percentage Discount Rates (E- 
Rates)), an eligible school, library or consortia may apply such discount prior 
to any discount received under this section. Any subsequent discount received 
under this section shall apply to the discounted E-Rate and not the tariffed 
rate. 
(d) Process by which an educational institution or library qualifies for reduced 
rates other than through a customer-specific contract.
(1) Affidavit. To qualify for a discounted rate, an educational institution or 
library, as defined in subsection (a) of this section, must provide a sworn 
affidavit to the dominant certificated telecommunications utility account 
representative or, if no account representative is assigned, to the business 
office of the utility. 
(A) The affidavit shall: 
(i) specify the requested service(s) to be discounted; 
(ii) quantify, if applicable, the requested service(s) to be discounted; 
(iii) state that the discounted service(s) will be used predominantly for 
distance learning purposes or information sharing program purposes; and
(iv) specify the intended use(s) of the discounted service(s).
(B) The affidavit shall be signed by the administrative head of the institution 
(e.g., principal, president, chancellor) or library , or a designee given the 
task and authority to execute the affidavit on behalf of the educational 
institution or library requesting the discounted rates.
(C) No other special form needs to be provided as part of the application 
process. 
(D) The educational institution or library shall provide an affidavit each time 
it orders services that will be used predominantly for distance learning 
purposes or information sharing program purposes. 
(2) Tariff filing. Within 30 days after the most recent effective date of this 
section, each dominant certificated telecommunications utility as of September 
1, 1995, shall file a distance learning and information sharing program tariff, 
providing for a 25% discount on any service used predominantly for distance 
learning or information sharing program purposes, other than a service offered 
pursuant to a customer-specific contract. The tariff filing shall concern only 
the implementation of this section and not affect any of the utility's other 
rates or services not utilized for distance learning or information sharing 
program purposes. Once the tariff goes into effect, any educational institution 
or library subsequently filing an affidavit, as described in paragraph (1) of 
this subsection, shall be eligible to receive the requested service at the 
discounted rate. 
(e) Interactive multimedia communications services. Any dominant certificated 
telecommunications utility that provides interactive multimedia communications 
services may file a tariff to establish rates at levels necessary, using sound 
rate- making principles, to recover costs associated with providing such 
services to educational institutions or libraries. Those interactive multimedia 
communications services used predominantly for distance learning or information 
sharing program purposes, however, shall qualify for a 25% discount pursuant to 
subsection (d) of this section. 
(f) Customer-specific contracts. When a service is provided to an educational 
institution or library pursuant to sec.23.27(c) of this title (relating to Rate-
Setting Flexibility for Services Subject to Significant Competitive Challenges), 
the dominant certificated telecommunications utility shall price those 
components of the service used predominantly for distance learning or an 
information sharing program no less than 105%, and no greater than 110%, of the 
customer-specific long-run incremental cost. 
(g) Cost determination. Not withstanding subsections (d) and (e) of this 
section, once the commission develops cost determination rules for 
telecommunications services generally, a reduced rate approved under this 
section shall recover the service- specific long-run incremental costs. In the 
case of interactive multimedia communications services, however, the commission 
may allow a rate to be set lower than the long-run incremental cost of a 
specific service if such is determined to be in the public interest. 
(h) Filing requirements. Each dominant certificated telecommunications utility 
shall file an annual report with the commission on September 1 of each year 
indicating the demand for distance learning or information sharing program 
services provided under the distance learning or information sharing program 
tariff. The report shall include the following: 
(1) the type of institution(s) or libraries provided service(s);
(2) type(s) of service(s) provided to each institution or libraries; and 
(3) quantity of the service(s) provided. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 6, 1998.
TRD-9801704
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: March 22, 1998
For further information, please call: (512) 936-7308

SUBCHAPTER L. Wholesale Market Provisions
16 TAC sec.26.283
The Public Utility Commission of Texas proposes new sec.26.283, concerning 
Infrastructure Sharing. The proposed new section will implement the Public 
Utility Regulatory Act, Texas Utilities Code Annotated sec.60.163 (Vernon 1998) 
(PURA), which requires the commission to adopt rules requiring a local exchange 
company to share public switched network infrastructure and technology with 
another local exchange company under certain conditions. Project Number 17296 
has been assigned to this proposed new section. 
Martin Wilson, assistant general counsel, has determined that for each year of 
the first five-year period the proposed new section is in effect there will be 
no fiscal implications for state or local government as a result of enforcing or 
administering the new section. 
Mr. Wilson has determined that for each year of the first five years the 
proposed new section is in effect the public benefit anticipated as a result of 
enforcing the section will be more efficient use of resources by local exchange 
companies. There will be no effect on small businesses as result of enforcing 
this section. There is no anticipated economic cost to entities who are required 
to comply with the section as proposed. 
Mr. Wilson has also determined that for each year of the first five years the 
proposed section is in effect there will be no impact on employment in the 
geographic area affected by implementing the requirements of the section.
Comments on the proposed new section (16 copies) may be submitted to the Filing 
Clerk, Public Utility Commission of Texas, 1701 North. Congress Avenue, P.O. Box 
13326, Austin, Texas 78711-3326, within 30 days after publication.
All comments should refer to Project Number 17296. 
This new section is proposed under the Public Utility Regulatory Act, Texas 
Utilities Code Annotated sec.14.002 and sec.60.163 (Vernon 1998) (PURA). Section 
14.002 provides the commission with the authority to make and enforce rules 
reasonably required in the exercise of its powers and jurisdiction. Section 
60.163 requires the commission to adopt rules regarding the sharing of public 
switched network infrastructure and technology.
Cross Index to Statutes: PURA sec.14.002 and sec.60.163. 

sec.26.283. Infrastructure Sharing.
(a) Definitions. The following words and terms, when used in this section, shall 
have the following meanings unless the context clearly indicates otherwise. 
(1) Local exchange company (LEC) - As defined in the Public Utility Regulatory 
Act, Texas Utilities Code sec.51.002(4)(Vernon 1998)(PURA).
(2) Public switched network infrastructure and technology - Includes, but is not 
limited to: 
(A) Basic public switched network infrastructure and technology - The physical 
plant and corresponding functionalities that provide basic network services such 
as those listed in PURA sec.58.051. 
(B) Advanced public switched network infrastructure and technology - The 
physical plant and corresponding functionalities that provide integrated 
services digital network (ISDN) services as set forth in PURA sec.58.203(c), 
optical fiber or equivalent facilities, and Common Channel Signaling System 7. 
(3) Requesting LEC - A LEC that requests another LEC to share public switched 
network infrastructure and technology. 
(4) Sharing LEC - A LEC that has been requested by another LEC to share public 
switched network infrastructure and technology. 
(5) Sole carrier of last resort - The LEC holding a certificate of convenience 
and necessity, as to the geographic area covered by such certificate.
(b) Requirement to share. The commission may require any LEC to share public 
switched network infrastructure and technology with any other LEC that requests 
such sharing. In determining whether a LEC is required to share public switched 
network infrastructure and technology, the commission will consider such matters 
as: 
(1) whether the requesting LEC lacks economies of scale or scope that would 
prohibit the requesting LEC from offering a particular telecommunications 
service in an economically efficient manner in a specific geographic area;
(2) whether the requesting LEC is the sole carrier of last resort in the 
specific geographic area involved; 
(3) whether requiring a LEC to share its public switched network infrastructure 
and technology would be economically efficient for the sharing LEC, or, if not, 
whether terms and conditions can and should be imposed that would make such 
sharing economically efficient; and 
(4) whether requiring a LEC to share its public switched network infrastructure 
and technology is in the public interest. 
(c) Procedure to request sharing. 
(1) A LEC requesting that another LEC share public switched network 
infrastructure and technology shall make its request to the sharing LEC in 
writing. 
(2) The requesting LEC and the sharing LEC shall negotiate terms and conditions 
of the sharing arrangement. The terms and conditions may include, but are not 
required to include, joint ownership and/or operation of public switched network 
infrastructure and services by the LECs. 
(3) Within 60 days after a LEC has received a request for sharing, the sharing 
and requesting LECs shall jointly file an agreement setting forth the terms and 
conditions of the sharing arrangement. If the parties cannot reach agreement on 
the appropriate terms and conditions, the requesting party shall instead file, 
not later than the 60th day after the sharing LEC's receipt of the request, a 
petition to resolve issues related to infrastructure sharing. The petition shall 
set forth, as appropriate, the terms and conditions on which agreement has been 
reached, the specific issues the commission is being asked to resolve, the 
requesting LEC's suggested resolution of such issues in terms that could be 
inserted into an agreement, and a suggested procedural schedule for resolution 
of the issues. The petition shall also address the factors that the commission 
must consider under subsection (b) of this section. If a petition is filed in 
lieu of an agreement, the sharing LEC must file a response within 10 days of the 
filing of the petition. The sharing LEC's response must address, in like manner, 
each item required by this subsection to be included in the petition.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 6, 1998.
TRD-9801706
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: March 22, 1998
For further information, please call: (512) 936-7308

TITLE 25. HEALTH SERVICES
PART I. Texas Department of Health
CHAPTER 29.Purchased Health Services
SUBCHAPTER L.General Administration
25 TAC sec.29.1126
On behalf of the State Medicaid Director, the Texas Department of Health 
(department) proposes an amendment to sec.29.1126 concerning in-home total 
parenteral hyperalimentation services provided to Medicaid recipients. The 
amendment removes enteral feeding services as a covered service under in-home 
total parenteral hyperalimentation services rules because these services are 
covered under home health. The amendment also removes reference to the 
reimbursement methodology for enteral feeding services. These services are 
covered under the home health services. 
Mr. Joe Moritz, Health Care Financing Budget Director, has determined that for 
the first five-year period the section is in effect, there will be no fiscal 
implications to state or local government as a result of enforcing or 
administering the section as proposed. 
Mr. Moritz also has determined that for each year of the five years the section 
is in effect, the public benefit anticipated as a result of enforcing the 
section will be the assurance that all Medicaid recipients are receiving 
medically necessary enteral feeding services under home health services. There 
is no effect on small businesses. There is no anticipated economic costs to 
persons who are required to comply with the proposed section. There is no impact 
on local employment. 
Comments on the proposal may be submitted to Genie DeKneef, Program 
Administrator, Health Care Financing, Texas Department of Health, 1100 West 49th 
Street, Austin, Texas 78756-3168, (512) 338-6509. Comments will be accepted for 
30 days following publication of this proposal in the Texas Register. The 
department will hold a public hearing on the proposal Tuesday, March 3, 1998, 
from 9:00 a.m. until 10:00 a.m., at the Stratum, Building D, conference room 
404, 11044 Research Blvd., Austin, Texas. According to federal requirements, a 
copy of this proposal is being sent to each Texas Department of Human Services 
field office where it will be available in each county for public review and 
comment.
The amendment is proposed under the Human Resources Code, sec.32.021 and 
Government Code, sec.531.021, which provides the Health and Human Services 
Commission with the authority to adopt rules to administer the state's medical 
assistance program and is submitted by the Texas Department of Health under its 
agreement with the Health and Human Services Commission to operate the purchased 
health services program and as authorized under Chapter 15, sec.1.07, Acts of 
the 72nd Legislature, First Called Session (1991). 
The amendment affects Chapter 32 of the Human Resources Code. 

sec.29.1126.In-home Total Parenteral Hyperalimentation [and/or Enteral Feeding] 
Services.
(a) Subject to the specifications, conditions, limitations, and requirements 
established by the Texas Department of Health (department), in-home total 
parenteral hyperalimentation [and/or enteral feeding] services shall be 
available to eligible recipients who require long-term support because of 
extensive bowel resection and/or severe advanced bowel disease in which the 
bowel cannot support nutrition. Covered services must be reasonable, medically 
necessary, and prescribed by the recipient's physician (M.D. or D.O.). The 
physician must be licensed in the state in which the physician practices. 
(b) The department or its designee must prior authorize the services. Prior 
authorization request must include all pertinent medical records as required by 
the department or its designee to justify the medical necessity of the long-term 
total parenteral hyperalimentation [and/or enteral feedings]. Prior 
authorization is a mandatory requirement for payment. 
(c) Covered services include, but are not necessarily limited to: 
(1) - (2) (No change.) 
(3) education of the recipient and/or appropriate family members/support persons 
regarding the in-home administration of total parenteral hyperalimentation 
[and/or enteral feedings] before administration initially begins. Education must 
include the use and maintenance of required supplies and equipment; 
(4) visits by a registered nurse appropriately trained in the administration of 
hyperalimentation [and/or enteral feedings]. The nurse must visit the recipient 
at least once per month to monitor the recipient's status and to provide ongoing 
education to the recipient and/or family members/support persons regarding the 
administration of hyperalimentation [and/or enteral feedings]; <nl>and<ol> 
(5) enteral supplies and equipment, if medically necessary, in conjunction with 
total parenteral hyperalimentation [;and].
[(6) enteral solutions, supplies and equipment as the prescribed treatment.] 
(d) Providers of in-home total parenteral hyperalimentation [and/or enteral 
feedings] must: 
(1) - (5) (No change.) 
(e) The department or its designee shall reimburse each provider <nl> for<ol> 
providing total parenteral hyperalimentation [and/or enteral feeding] services 
on a monthly basis. Reimbursement shall be based on one-twelfth of the maximum 
yearly fee established by the department. The maximum fee established for total 
parenteral hyperalimentation is $145 per day. [The maximum fee for enteral 
feeding solution, supplies and equipment not in conjunction with total 
parenteral hyperalimentation is $75 per day.] If funding is available, the 
department will adjust the allowable fees or rates each state fiscal year by 
applying the projected rate of change of the implicit price deflator for 
personal consumption expenditure (IPD-PCE). The department shall use the lowest 
feasible IPD-PCE forecast consistent with the forecasts of nationally-recognized 
sources available to the department at the time rates are prepared. The 
department or its designee shall not reimburse more than a one-week supply of 
solutions and additives if the solutions and additives are shipped and not used 
because of the recipient's loss of eligibility, change in treatment, or 
inpatient hospitalization. The provider must exclude from its monthly billing 
any days that the recipient is an inpatient in a hospital or other medical 
facility or institution. Payment for partial months will be prorated based upon 
actual days of administration. Hospital outpatient departments furnishing in-
home total parenteral nutrition [and/or enteral feedings] must be separately 
enrolled as a provider meeting all requirements stipulated in subsection (d) of 
this section. Reimbursement to hospital outpatient departments furnishing in-
home total parenteral nutrition [and/or enteral feeding] services may not exceed 
the maximum yearly fee established by the department.  
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on February 6, 1998.
TRD-9801741
Susan K. Steeg
General Counsel
Texas Department of Health
Earliest possible date of adoption: March 22, 1998
For further information, please call: (512) 458-7236

CHAPTER 91.Cancer
The Texas Department of Health (department) proposes the repeal of sec.sec.91.1 
- 91.7 and proposes new sec.sec.91.1 - 91.14, concerning reporting of cancer and 
other precancerous or tumorous disease incidence data to the department or its 
authorized representatives. The new sections specify who is required to report; 
what cancer information is to be reported; when, how and where this information 
should be reported; a cost-recovery method to access cancer information from 
facilities failing to report in the prescribed format; a definition of reporting 
non-compliance; quality assurance activities; immunity from liability for 
reporters; confidentiality and disclosure of cancer information; and requests 
for and release of statistical and personal cancer data. 
The Cancer Registry Division has been awarded a grant by the United States 
Department of Health and Human Services, Centers for Disease Control and 
Prevention (DHHS/CDC) to provide for the support of a statewide population-based 
cancer registry that meets CDC standards for completeness, timeliness, and 
quality cancer registry data. The repeal and new sections are needed to 
implement Health and Safety Code, Chapter 82 (the Cancer Incidence Reporting 
Act) and to meet requirements of this cancer registry related federally funded 
grant.
Nancy S. Weiss, Ph.D., Director, Cancer Registry Division has determined that 
for the first five-year period the sections are in effect, there will be fiscal 
implications as a result of enforcing or administering the sections as proposed. 
The effect on state government will be an estimated increase in revenue to the 
state of approximately $210,000 per year as a result of the proposed cost-
recovery data collection. In addition, these sections are necessary to continue 
to receive $1.1 million per year in federal grant funds. It is estimated that 
costs to the state to administer the new data collection method will equal the 
revenues received. There will be no fiscal implications for most local 
governments. Local governments which are providing cancer diagnosis and/or 
treatment will incur costs of approximately $7.00 per case (average of 30 
minutes per case reported). 
Dr. Weiss has also determined that for each year of the first five years the 
sections are in effect, the public benefit anticipated as a result of enforcing 
the sections will be to have complete and accurate cancer data reported within 
six months of initial diagnosis or admission for the diagnosis or treatment of 
cancer. This will increase the availability of timely, statewide cancer 
incidence data for use in cancer prevention and control efforts in the State. 
The anticipated effect on small businesses (as well as large businesses) who do 
not report will be the cost of data collection by the department estimated to be 
$30 per unreported cancer case. The economic costs to persons who are required 
to comply with the sections as proposed will be the staff time to complete 
reporting requirements which is approximately 30 minutes per case (estimated 
$7.00 per case). There will be no impact on local employment.
Comments on the proposal may be submitted to Nancy S. Weiss, Ph.D., Director, 
Cancer Registry Division, Texas Department of Health, 1100 West 49th Street, 
Austin, Texas, 78756, (512) 467-2239. Comments will be accepted for 30 days 
following publication of this proposal in the Texas Register.

Cancer Registry
25 TAC sec.sec.91.1-91.7
(Editor's note: The text of the following sections proposed for repeal will not 
be published. The sections may be examined in the offices of the Texas 
Department of Health or in the Texas Register office, Room 245, James Earl 
Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under Health and Safety Code sec.82.006 which provides 
the department with the authority to adopt rules necessary to implement Chapter 
82 (Cancer Registry); sec.81.004 which provides the Texas Board of Health with 
the authority to administer Chapter 81 for protecting the public's health and 
preventing the introduction of disease in the state; and sec.12.001, which 
provides the Texas Board of Health with the authority to adopt rules for the 
performance of every duty imposed by law on the board, the department, and the 
commissioner of health. 
The repeals affect Health and Safety Code, Chapter 82. 
sec.91.1.Definitions.
sec.91.2.Reporting Requirements.
sec.91.3.List of Reportable Diseases.
sec.91.4.Fee for Collection of Cancer Data.
sec.91.5.Confidentiality and Disclosure.
sec.91.6.Requests for Statistical Cancer Morbidity and Mortality Data.
sec.91.7.Requests and Release of Personal Cancer Data.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on February 9, 1998.
TRD-9801853
Susan K. Steeg
General Counsel
Texas Department of Health
Earliest possible date of adoption: March 22, 1998
For further information, please call: (512) 458-7236

SUBCHAPTER A.Cancer Registry
25 TAC sec.sec.91.1-91.14
The new sections are proposed under Health and Safety Code sec.82.006 which 
provides the department with the authority to adopt rules necessary to implement 
Chapter 82 (Cancer Registry); sec.81.004 which provides the Texas Board of 
Health with the authority to administer Chapter 81 for protecting the public's 
health and preventing the introduction of disease in the state; and sec.12.001, 
which provides the Texas Board of Health with the authority to adopt rules for 
the performance of every duty imposed by law on the board, the department, and 
the commissioner of health. 
The new sections affect Health and Safety Code, Chapter 82. 

sec.91.1.Purpose.
These sections implement the Texas Cancer Incidence Reporting Act, Health and 
Safety Code, Chapter 82, which authorizes the Texas Board of Health to adopt 
rules concerning the reporting of cases of precancerous and tumorous diseases 
and cancer for the recognition, prevention, cure, or control of those diseases, 
and to facilitate participation in the national program of cancer registries 
established by 42 United States Code, sec.sec.280e to 280e-4. Nothing in this 
section shall preempt the authority of facilities or individuals providing 
diagnostic or treatment services to patients with cancer to maintain their own 
facility based tumor registries. 

sec.91.2.Definitions.
The following words and terms, when used in these sections, shall have the 
following meanings, unless the context clearly indicates otherwise. 
Act - The Texas Cancer Incidence Reporting Act, Texas Health and Safety Code, 
Chapter 82. 
Ambulatory surgical center - A facility licensed under the Texas Health and 
Safety Code, Chapter 243. 
Board - Texas Board of Health. 
Cancer - Includes a large group of diseases characterized by uncontrolled growth 
and spread of abnormal cells; any condition of tumors having the properties of 
anaplasia, invasion, and metastasis; a cellular tumor the natural course of 
which is fatal; and malignant neoplasm. 
Cancer reporting handbook - The division's manual for cancer reporters which 
documents reporting procedures and format. 
Cancer treatment center - A special health facility devoted to the study, 
prevention, diagnosis, and treatment of neoplastic and allied diseases. 
Clinical laboratory - An accredited facility in which tests are performed 
identifying findings of anatomical changes; and specimens are interpreted and 
pathological diagnoses are made. 
Department - Texas Department of Health. 
Division - Cancer Registry Division. 
Health care provider - A physician, hospital, outpatient clinic, nursing home 
and all other facilities, individuals, or agencies providing diagnostic or 
treatment services to patients with cancer. 
Health professional - An individual whose vocation or profession is directly or 
indirectly related to the maintenance of the health of another individual and 
duties that require a specified amount of formal education and may require a 
special examination, certification, or license or membership in a regional or 
national association. 
Hospital - A general or special hospital licensed under Health and Safety Code, 
Chapter 241 (Texas Hospital Licensing Law); The University of Texas System 
Cancer Center. 
Personal data - Information that includes items which may identify an 
individual. 
Physician - A person licensed by the Texas State Board of Medical Examiners to 
practice medicine in Texas. 
Precancerous disease - Abnormality of development and organization of adult 
cells; a condition of early cancer, without invasion of neighboring tissue. 
Quality control- Operational procedures by which the accuracy, completeness, and 
timeliness of the information reported to the department can be determined and 
verified. 
Regional cancer registry - The organization authorized to receive and collect 
cancer data for a designated area of the state and which maintains the system by 
which the collected information is reported to the department. 
Regional director - The physician who is the chief administrative officer of a 
public health region and is designated by the department under the Local Public 
Health Reorganization Act, Health and Safety Code, sec.121.007.
Report - Information that is to be provided to the department; the notification 
to the appropriate authority of the occupancy of a specific cancer or tumorous 
disease in a person, including all information required to be provided to the 
department.
Statistical data - Aggregate presentation of individual records on cancer cases 
excluding patient identifying information. 
Texas Cancer Registry - The cancer incidence reporting system administered by 
the Cancer Registry Division. 
Tumorous disease - A new growth of tissue in which the multiplication of cells 
is uncontrolled and progressive, also called neoplasm; a swelling, enlargement, 
or abnormal mass, either benign or malignant, which performs no useful 
functions.

sec.91.3.Who Shall Report.
(a) Each hospital, cancer treatment center, or ambulatory surgical center shall 
report to the department, by methods specified in sec.sec.91.4-91.7 of this 
title (relating to Cancer Registry) required data from each medical record in 
its custody or under its control of cases of cancer or those precancerous or 
tumorous diseases specified by the board in sec.91.4 of this title (relating to 
What to Report). 
(b) Each clinical laboratory shall report to the department, by methods 
specified in sec.91.6 of this title (relating to How to Report) required data 
from each medical record in its custody or under its control of cases of cancer 
or those precancerous or tumorous disease specified by the board in sec.91.4 of 
this title, except for cases reported or to be reported by subsection (a) of 
this section. 
(c) Each physician or other health professional shall report to the department, 
by methods specified in sec.91.6 of this title, required data from each medical 
record in his or her custody or under his or her control of cases of cancer or 
those precancerous or tumorous diseases specified by the board in sec.91.4 of 
this title, except for cases reported or to be reported by subsection (a) of 
this section. 
(d) The department will furnish on request to each health care provider within 
the state requisite forms to be completed on all cancer cases. 
(e) If a hospital, other required facility or individual fails to report in a 
format prescribed by the department, the department or its authorized 
representative may access the information from the hospital, other facility or 
individual and report it in the appropriate format. In these cases, the 
hospital, other facility or individual shall reimburse the department or the 
authorized representative for its cost to access and report the information.
(f) Any hospital, other facility or individual which is required to reimburse 
the department or its authorized representative for the cost to access and 
report the information pursuant to subsection (e) of this section shall provide 
payment to the department or its authorized representative within 60 days of the 
day this payment is demanded. In the event any hospital, other facility or 
individual fails to make payment to the department or its authorized 
representative within 60 days of the day the payment is demanded, the department 
or its authorized representative may, at its discretion, assess a late fee not 
to exceed one and one-half percent per month of the outstanding balance. 
Further, in the event that the representative takes legal action to recover 
costs and any associated fees, and the department or its authorized 
representative receives a judgement in its favor, the hospital, other facility 
or individual shall also reimburse the department or its authorized 
representative for any additional cost incurred to pursue the legal action. Late 
fees and payment made to the department by hospitals, other facilities or 
individuals pursuant to this subdivision shall be considered as reimbursement of 
the additional costs incurred by the department. 
(g) All physicians, hospitals, outpatient clinics, nursing homes, hospices, and 
other facilities, individuals or agencies providing diagnosis or treatment 
services to patients with cancer shall grant the department or its authorized 
representative access to all records which would identify cases of cancer or 
would establish characteristics of the cancer, treatment of cancer, or medical 
status of any identified cancer patient. 

sec.91.4.What to Report.
(a) Reportable conditions. 
(1) Cases of cancer or those precancerous or tumorous diseases to be reported to 
the division are as follows: 
(A) all neoplasms with a behavior code of two or three in the most current 
edition of the International Classification on Diseases for Oncology (ICD-O) 
with the exception of those designated by the division as non-reportable in the 
cancer reporting handbook; 
(B) all benign and borderline neoplasms of the brain and central nervous system; 
(C) cystadenomas of borderline malignancy of ovary (ICDO-2 codes C56.9 and 
M83801); 
(D) hydatiform mole, malignant (ICDO-2 codes C58.9 and M91001); and 
(E) any neoplasm specified malignant. 
(2) Codes and taxa of the International Classification of Diseases, Ninth 
Revision, Clinical Modification which correspond to the division's reportable 
list are specified in the cancer reporting handbook.
(b) Reportable information.
(1) The data required to be produced or furnished shall include, but not be 
limited to: 
(A) name, address, zip code, and county of residence; 
(B) date of birth, sex, race, and Spanish ethnicity, and birthplace;
(C) information on industrial or occupational history, to the extent such 
information is available from the medical record; 
(D) diagnosis including the cancer site, cell type, tumor grade and size, stage 
of disease, date of diagnosis, and diagnostic confirmation method; 
(E) all cancer-related treatment; and 
(F) documentation to support cancer diagnosis, stage and treatment.
(2) Each report shall: 
(A) be legible and contain all data items required in paragraph
(1) of this subsection relating to reporting requirements and complete 
documentation;
(B) be in a format prescribed by the division; 
(C) meet all quality control standards utilized by the division;
(D) in the case of individuals who have more than one form of cancer, be 
submitted separately for each primary cancer or precancerous or tumorous disease 
diagnosed; 
(E) be submitted to the division electronically, or manually if electronic means 
are unavailable; and 
(F) be transported by secure means at all times to protect the confidentiality 
of the data. 

sec.91.5.When to Report.
(a) All reports of cases are to be submitted to the department within six months 
of initial diagnosis or admission at their facility for the diagnosis or 
treatment of cancer. 
(b) Data should be submitted at least quarterly; monthly submissions are 
recommended. 

sec.91.6.How to Report.
A report of cancer can be made to the department by any of the following 
methods: 
(1) submission of a completed Confidential Cancer Reporting Form (TCR No. 1); 
(2) submission electronically using one of the following methods: 
(A) three and one half inch disk; 
(B) magnetic tape; 
(C) computer modem transmission; or 
(D) the Internet. 

sec.91.7.Where to Report.
(a) All counties shall be assigned to a designated regional cancer registry of a 
public health region. 
(b) Forms. 
(1) Completed forms shall be submitted to the regional director or his designee 
at the public health region where the person with cancer or precancerous or 
tumorous disease is diagnosed or treated. 
(2) A map and list of public health regions, and the addresses of respective 
regional directors are available from the Texas Department of Health, 1100 West 
49th Street, Austin, Texas, 78756-3199. 
(c) All electronic data reports should be submitted to the central office of the 
division to the Cancer Registry Division, Texas Department of Health, 1100 West 
49th Street, Austin, Texas 78756-3199. 

sec.91.8.Compliance.
A cancer reporter in accordance with sec.91.3(a)-(c) of this title (relating to 
Who Shall Report) is considered compliant if he/she meets sec.91.4(a)(1) and (b) 
of this title (relating to What to Report), sec.91.5 of this title (relating to 
When to Report), and sec.91.6 of this title (relating to How to Report). If the 
reporter is non-compliant, the department may collect the data as stated in 
sec.91.3 of this title. 

sec.91.9.Immunity from Liability.
The following persons subject to this chapter that act in compliance with this 
chapter are not civilly or criminally liable for furnishing the information 
required under this chapter: a hospital, clinical laboratory, ambulatory surgery 
center, or cancer treatment center; or a physician or other health care 
provider. Staff of the division that disclose confidential data in the course of 
their job duties are not civilly or criminally liable for furnishing the 
information required. 

sec.91.10.Confidentiality and Disclosure.
(a) Pursuant to the Texas Cancer Incidence Reporting Act, Health and Safety 
Code, Chapter 82, sec.82.009, all data obtained directly from the medical 
records of a patient is for the confidential use of the department and the 
persons or public or private entities that the executive deputy commissioner 
determines are necessary to carry out the intent of this chapter based upon the 
recommendation of the Committee on Requests for Personal Data in sec.181.11 of 
this title (relating to Requests for Personal Data). The data are privileged and 
may not be divulged or made public in a manner that discloses the identity of an 
individual whose medical records have been used for obtaining data under this 
chapter. Information that may identify an individual whose medical records have 
been used for obtaining data under this chapter is not available for public 
inspection under Government Code, Chapter 552. Statistical informationcollected 
under this chapter is public information. 
(b) Only personnel authorized by the director of the department and other 
individuals authorized by the director of the division or his designee shall 
have access to the records. 
(c) Photocopying or other reproduction of any clinical records or reports 
containing identifying information, except as may be required in the conduct of 
the official business of the department, is prohibited. 
(d) Any legal documents other than the original incidence reports and abstracts, 
such as computer printouts or photocopies of any documents containing 
identifying information, shall also be considered confidential material while in 
active use, and shall be destroyed immediately upon termination of their use by 
the department. 
(e) Information that characterizes the caseload of a specific cancer reporting 
institution or health care provider will be treated sensitively but the 
department will follow Government Code, Chapter 552. 

sec.91.11.Quality Assurance.
(a) The department shall cooperate and consult with participating health care 
facilities so that such facilities may provide timely, complete and accurate 
data. The department will provide: 
(1) reporting training, on-site case-finding studies, and reabstracting studies; 
(2) quality assurance reports to assure the computerized data utilized for 
statistical information and data compilation is correct; and 
(3) educational information available from the department morbidity and 
mortality statistics. 
(b) The regional cancer registry shall maintain a system of quality control in 
accordance with procedures approved by the department.

sec.91.12.Requests for Statistical Cancer Data.
(a) Statistical cancer data previously analyzed and printed are available upon 
written or oral request. All other requests for statistical data requiring 
programming and computer retrieval and for which a fee is levied under 
sec.sec.1.251-1.255 of this title (relating to Requests for Providing Public 
Information) shall be in writing and directed to: Cancer Registry Division, 
Texas Department of Health, 1100 West 49th Street, Austin Texas 78756-3199.
(b) To ensure that the proper data are provided, the oral or written request 
shall include, but not be limited to, the following information:
(1) name, address, and telephone number of the person requesting the 
information; 
(2) type of data needed and for what years (e.g. lung cancer incidence rates, 
Brewster County, 1992-1995); and 
(3) name and address of person(s) to whom data and billings are to be sent (if 
applicable). 
(c) The department's obligation to furnish the requested data is subject to the 
availability and accuracy of collected data. 
(d) The department may charge for requested data in accordance with 
sec.sec.1.251-1.255 of this title (relating to Requests for Providing Public 
Information). 
(e) Publications prepared by the Cancer Registry Division from its data for 
general distribution may be subject to a set fee per copy to offset the cost of 
printing. 

sec.91.13.Requests and Release of Personal Cancer Data.
(a) Requests for data. 
(1) Requests for personal cancer data shall be in writing and directed to: Texas 
Department of Health, Committee for Requests for Personal Data, Bureau of Vital 
Statistics, 1100 West 49th Street, Austin, Texas 78756-3199.
(2) Written requests for personal data shall include the following information 
and assurances: 
(A) name and address of the agency, institution , or firm sponsoring the 
project; 
(B) name, degree(s), title, address, and telephone number of the person who will 
direct the project; 
(C) name and address of the agency, institution, or firm funding the project (if 
other than that shown in subparagraph (A) of this paragraph);
(D) names, degree(s) and titles of other persons who will have supervisory 
responsibilities in the project; 
(E) specific purpose of the project and a statement of why the disclosure of 
this information is deemed necessary to accomplish this purpose; 
(F) type of data needed and for what years (e.g., cervical cancer incidence, El 
Paso County, 1990-1995); 
(G) action planned; 
(H) results expected; 
(I) assurances that the following conditions regarding the release of the 
requested data shall be met: 
(i) the data shall be treated as strictly confidential; 
(ii) the data shall not be used for any purpose other than that specifically set 
forth in this subsection and shall not be used for any secondary purpose; 
(iii) the data shall not be made available to any other individual agency, 
institution, or firm; 
(iv) no follow back of any type shall be made to any individual, institution, or 
agency without written authorization by the Texas Department of Health; 
(v) any data released by a project shall be restricted to aggregate data and 
shall not identify any individual or institution; 
(vi) the Texas Department of Health shall be given credit as the source of the 
data; 
(vii) a copy of the results of the project shall be furnished to the Texas 
Department of Health; and 
(viii) if electronic media are provided, such media, after serving the purpose 
set forth in this subsection, shall be erased unless specific authority is 
requested and granted for their retention and future use; 
(J) name and address of person(s) to whom data and billing are to be sent must 
be provided; and 
(K) the release must be signed by the appropriate administrative officer of the 
sponsoring agency, institution, or firm. 
(b) Release of data. 
(1) The division may provide reports containing personal data back to the 
respective reporting health care provider from records previously submitted to 
the division from each respective reporting entity for the purposes of case 
management and administrative studies. These reports will not be released to any 
other entity. 
(2) The division may release personal data to other bureaus of the department, 
provided that the disclosure is required or authorized by law. All 
communications of this nature shall be clearly labeled "Confidential" and will 
follow established departmental internal protocols and procedures.
(3) The division may release personal data to the department's Cancer Registry 
Program personnel headquartered in public health regions or public health 
departments to facilitate the collection, editing, and analysis of cancer 
registry data for the respective geographic area. All communications of this 
nature shall be clearly labeled "Confidential" and will follow established 
departmental internal protocols and procedures. 
(4) The division may release personal cancer data to state, federal, local, and 
other public agencies and organizations in accordance with the standard 
guidelines for release of personal data as outlined in section (a) of this 
section. 
(5) The division may release personal cancer data to private agencies, 
organizations, and associations in accordance with the standard guidelines for 
release of personal data as outlined in section (a) of this section. 
(6) The division may release personal cancer data to any other individual or 
entities for reasons deemed necessary by the board to carry out the intent of 
the Cancer Incidence Reporting Act (Health and Safety Code, Chapter 82) and in 
accordance with the standard guidelines for release of personal data as outlined 
in subsection (a) of this section. 
(7) A person who submits a valid authorization for release of cancer data shall 
have access to review or obtain copies of the information described in the 
authorization for release. 

sec.91.14.Statistical Reports.
The department shall publish annually statistical reports of the information 
obtained under this Act. The department, in cooperation with other cancer 
reporting organizations and research institutions, may publish reports the 
department determines are necessary or desirable to carry out the purpose of the 
Act. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on February 9, 1998.
TRD-9801852
Susan K. Steeg
General Counsel
Texas Department of Health
Earliest possible date of adoption: March 22, 1998
For further information, please call: (512) 458-7236

CHAPTER 100.Immunization Registry
25 TAC sec.sec.100.1-100.10
The Texas Department of Health (department) proposes new sec.sec.100.1-100.10, 
concerning the establishment of an Immunization Registry. Specifically, the 
sections define terms used in this chapter; address the criteria for inclusion 
of information and its confidentiality; the responsibilities of providers and 
payers; the effect of withdrawing consent; the information to be reported to the 
registry; data quality assurance; the responsibilities of managed care, health 
maintenance, and insurance companies; reports back to providers; exchange of 
information between the department and providers; and use of registry data for 
school and day care enrollment. The 75th Legislature, 1997 enacted Chapter 900, 
adding Health and Safety Code, sec.sec.161.007-161.009 requiring the department 
to establish an immunization registry and provide for the confidentiality of 
information it contains. These rules implement the legislation. 
Robert D. Crider, Jr., M.S., M.P.A., Director, Immunization Division, has 
determined that for the first five year period the sections are in effect, there 
will be no fiscal implications to state or local government as a result of 
enforcing or administering the sections as proposed. Mr. Crider bases his 
estimate on the fiscal note prepared for the legislature on House Bill No. 3054, 
which became Chapter 900. 
Mr. Crider has determined that for each year of the first five years the 
sections are in effect, the public benefit anticipated as a result of these 
sections, is a centralized immunization registry that is the most efficient 
method for providers, both public and private, to maintain and access a child's 
immunization history. The public benefits anticipated as a result of reporting 
to the immunization registry include: better health care for children with less 
illness and death due to vaccine-preventable diseases, reduced costs due to the 
elimination of "over-vaccination" or "re-vaccination" because of lost records, 
reduced occurrences of "missed opportunities" to vaccinate which unnecessarily 
increase the risk of a child for vaccine-preventable diseases, and greater 
opportunity for outreach activities in areas of Texas with low immunization 
levels. Because the immunization records are stored electronically and available 
from one source, physicians are able to reduce staff time researching 
immunization histories. The child's complete immunization record will also be 
more easily available to school nurses, child care centers, and universities 
which require immunization information for enrollment. Software, installation, 
training and support for the tracking system, including the phone line access to 
the database, are provided by the department. The major costs to small 
businesses associated with the program will be to those medical practices 
providing immunizations. There will be increased time spent providing 
information to patients on the program, and providing them with consent forms 
and forms to decline participation. The consent form is kept with the medical 
record, so staff time must be spent filing them. These costs will vary from one 
practice to another depending upon how many patients are treated, how many 
participate in the program, how much time is devoted to explaining the program 
to each patient, filing the consents and the value of the staff time devoted to 
these tasks, and how providers are reimbursed for providing immunizations. Mr. 
Crider estimates the average cost to be $1.00 per each patient encounter where 
an immunization is provided. The cost to small businesses will be reduced by 
automated and streamline billing of immunizations. Aside from the costs to small 
businesses, there will be certain costs imposed on other persons. Those who wish 
to decline participation or withdraw consent must communicate this to the 
department, involving minimal postage, currently $.32, soon to increase to $.35. 
Large insurers are required to submit data after 1998, and will incur certain 
staffing and transmittal costs, though larger entities will almost certainly 
file requested information electronically. The department estimates that the 
average insurer will incur costs equivalent to $500 per year of participation. 
There is no anticipated impact on local employment. 
Comments on the proposal may be submitted to Robert D. Crider, Jr., M.S., 
M.P.A., Director, Immunization Division, 1100 West 49th Street, Austin, Texas, 
78756, (512) 458-7284. Comments will be accepted for 30 days following the date 
of publication of this proposal in the Texas Register. 
The new sections are proposed under the Health and Safety Code, sec.161.007 
which requires the board to adopt rules to implement the immunization registry, 
and sec.12.001 which provides the board with authority to adopt rules for the 
performance of every duty imposed by law on the board, the department, and the 
commissioner of health. 
These new sections affect the Health and Safety Code, Chapter 161. 

sec.100.1.Definitions.
The following words and terms when used in this chapter shall have the following 
meanings unless the context clearly indicates otherwise. 
Department-The Texas Department of Health or its authorized agents. 
Division-The Immunization Division of the Texas Department of Health, Central 
Office, 1100 West 49th Street, Austin, Texas, 78756. 
Health Plan-An insurance company, a health maintenance organization, or another 
organization that pays or reimburses a provider for immunizations administered. 
Immunization history-An accounting of all vaccines that a child has received. 
Immunization record-An accounting of all vaccines that a child has received.
Immunization registry (ImmTrac)-The database or single repository that contains 
immunization records and personal data for identification. This database is 
confidential, and access to content is limited to authorized users.
Patient, client or child-Person or individual to whom a vaccine has been 
administered. 
Provider-Any physician, health care professional, or facility personnel duly 
licensed to administer vaccines. All providers are eligible to participate in 
the registry. All providers become agents of the Texas Department of Health for 
the purposes of the Immunization Registry. 
User-An entity or individual authorized by the department to access registry 
data. 
Vaccine-Includes toxoids and other immunologic agents which are administered to 
children and adults to elicit an immune response and thus protect against an 
infectious disease. 

sec.100.2.Inclusion of Information and Confidentiality.
(a) The immunization registry shall contain information on the immunization 
history that is obtained by the department under this section of each person who 
is younger than 18 years of age and for whom consent has been obtained in 
accordance with this subsection. The department shall remove from the registry 
information for any person for whom consent has been withdrawn under paragraph 
(3) of this section. The department shall obtain the written consent of a 
parent, managing conservator, or guardian of a patient before any information 
relating to the patient is included in the registry. The consent language should 
be substantially similar to the text of paragraphs (1), (2) and (3) of this 
section. The department shall prepare appropriate forms to obtain consent and on 
request furnish them to providers. 
(1) "I authorize the Texas Immunization Registry to release past, present, and 
future information concerning my child's immunizations to myself and any: 
(A) public health district; 
(B) local health department; 
(C) physician to the child; 
(D) school or day care facility in which the child is enrolled; and 
(E) the director of the immunization division of the department or his designee. 
(2) "I authorize any of the above entities to further re-release this 
information to promote the availability of accurate, complete and current, 
immunization records to those entities and individuals who provide immunization 
services and follow-up services for immunizations." 
(3) "I understand that I may withdraw, either the consent to place information 
on my child in the registry or my consent to release information from the 
registry at any time by written communication to the Texas Department of Health, 
Immunization Registry, 1100 West 49th Street, Austin, Texas, 78756." 
(4) A parent, managing conservator, or guardian of a patient, who agrees to 
participate should sign a signature block indicating their consent to 
participate. Parents who decline to participate should sign a statement stating: 
"I do not want to have my child participate in the Immunization Registry" or a 
similar statement. Parents choosing this option should mail their statement to 
the Texas Department of Health, Immunization Registry, 1100 West 49th Street, 
Austin, Texas, 78756. 
(b) The Bureau of Vital Statistics will provide the option for parental consent 
for inclusion in the registry on the birth certificate. This consent will be 
valid for life unless the parent, managing conservator or guardian notifies the 
department that consent is withdrawn. 
(c) As required by Health and Safety Code, sec.161.007, all information which 
identifies individuals shall be protected as medical information in accordance 
with the Medical Practice Act, Texas Civil Statutes Article 4495b, sec.5.08. 
(d) As provided in Health and Safety Code, sec.161.007(g), the department may 
use the registry to provide notices by mail, telephone, personal contact, or 
other means to a parent, managing conservator, or guardian regarding his or her 
child or ward who is due or overdue for a particular type of immunization 
according to the department's immunization schedule. The department shall 
consult with health care providers to determine the most efficient and cost-
effective manner of using the registry to provide these notices. 
(e) A health care professional or health plan who provides information to the 
Immunization Registry in good faith pursuant to this section is not subject to 
civil liability, as described in Health and Safety Code, sec.161.007(g). 

sec.100.3.Providers, Health Plans, and Insurance Companies.
(a) After December 31, 1998, an insurance company, a health maintenance 
organization, or another organization that pays or reimburses a claim for an 
immunization of a person younger than 18 years of age shall provide an 
immunization history to the department. On or before December 31, 1998, an 
insurance company, a health maintenance organization, or another organization 
that pays or reimburses a claim for an immunization of a person younger than 18 
years of age may provide an immunization history to the department. Unless 
informed otherwise by the provider or the department, the organization may 
assume that consent has been given for any vaccine for which the provider 
submits a claim or encounter record. 
(b) A provider shall inform each parent, managing conservator, or guardian of 
each patient about the registry in writing, and provide them with an opportunity 
to consent to the inclusion of information in the registry.
(c) External computer systems supplying the registry with immunization data will 
incorporate an indicator field that records whether written consent for 
inclusion has been obtained. These include, but or not limited to Integrated 
Client Encounter System (ICES), Women, Infant and Children (WIC) and Medicaid 
and other billing systems used by Texas insurers or health plans. 
(d) Providers shall attempt to obtain written consent for tracking and store the 
consent in the patient's medical record. 

sec.100.4.Withdrawal of Consent.
(a) The department must remove the patient records from the registry upon the 
written request from a child's parent, managing conservator, or guardian. 
(b) Upon receipt of a request to withdraw described in sec.100.2(a)(3)of this 
title (relating to Inclusion of Information and Confidentiality), the entire 
patient/client record will be removed from the registry. A written confirmation 
will be provided to the parent, managing conservator, or guardian or withdrawal 
from the registry within 30 business days of receipt by the Immunization 
Division. 
(c) The department shall take precautions to see that children whose parent, 
guardian, or managing conservator have refused or withdrawn consent shall not be 
included in the registry. 
(d) The department shall prepare appropriate forms to refuse or withdraw consent 
to participate in the registry, and make them available to providers.

sec.100.5.Reportable Information.
(a) All vaccines administered after the effective date of these rules, reported 
to the department will be sent in a manner consistent with these rules and 
procedures issued by the department. All immunizations will be reported to the 
registry until the child's 18th birthday. 
(b) A provider reporting directly to the registry will submit all the 
information required. Required information consists of the following: last name, 
first name, date of birth, sex and address of the child who is immunized, name 
of parent, guardian, or managing conservator and relationship to child, vaccine 
administered, and lot number and manufacturer of the vaccine administered. Other 
information specified on forms and data file layouts should be provided when 
available. 
(c) Providers receiving written notifications from parents requesting that their 
child's immunization data not be reported to the registry will forward the 
request to the department in a manner prescribed by the department.
(d) Beginning on January 1, 1997, vaccines administered will be reported to the 
department by paper forms, electronic transfer, faxed, mailed, telephone, or 
entered directly into ImmTrac within 30 business days of administering a vaccine 
in a format prescribed or approved by the department. Reporting by telephone is 
limited to medical practices that administer vaccine to less than 25 children 
per month. 
(e) Reports submitted by electronic transmission will meet data quality, format, 
security, and timeliness standards prescribed by the department. 
(f) Beginning on January 1, 1999, providers must report the following 
information: 
(1) provider information: 
(A) the health care professional's name (First, Middle Initial, Last); 
(B) business address (Street, City, Zip Code); and 
(C) business telephone number. 
(2) child and parent information: 
(A) child's name and address (First, Middle Initial, Last);
(B) child's social security number (if known); 
(C) gender of the child; 
(D) child's date of birth; and 
(E) mother's maiden name (if known) (First and Last). 
(3) vaccine information: 
(A) type of vaccine administered; 
(B) date the vaccine was administered; 
(C) vaccine lot number - (if known); and 
(D) name of vaccine manufacturer (if known) If the record has been entered as 
historical data, lot number and manufacturer are not required. Historical data 
are immunizations that were given prior to the present date and/or administered 
by a different provider. 
(g) If consent is obtained, providers should enter historical immunization 
records. 
(h) After December 31, 1998, a provider shall submit immunization information to 
the state-wide immunization registry, if not submitted by the provider to an 
insurance company, health maintenance organization or other organization that 
pays or reimburses a claim or encounter for an immunization.

sec.100.6.Data Quality Assurance.
(a) For the purpose of assuring the quality of submitted data, each provider 
will allow the department to inspect such parts of a patient's medical records 
as are necessary to verify the accuracy of submitted data.
(b) A provider will, upon request of the department, supply missing immunization 
information, if known, or clarify immunization information submitted to the 
department. 

sec.100.7.Managed Care Organizations, Health Maintenance Organizations and Other 
Insurers (with programs covering Texas residents), Will Provide Immunization 
Data to the Department.
(a) Organizations to which providers submit a claim or encounter information for 
an immunization, will in turn submit the required immunization information to 
the department within 25 business days from receipt from the provider. 
(b) Automated data exchange will conform to standards prescribed by the 
department. Data exchange will follow the national standard for data exchange, 
known as Health Level 7 (HL7), when this format is completed.

sec.100.8.Reports.
(a) Authorized and registered providers or health plans may request recall and 
reminder reports from the tracking system to provide notices of an upcoming or 
overdue immunization. 
(b) The provider, health plan and the department will maintain the 
confidentiality of all immunization reports. 

sec.100.9.Exchange of Records.
(a) The department, by written agreement with other providers and health plans, 
may transmit paper or electronic copies of immunization records or reports to 
registered users of the registry or to other state or national immunization 
registries. 
(b) The agreement will require that records be used only for immunization 
tracking and reporting purposes. The identity of a person named in the report 
will only be released as specified in the agreement. 

sec.100.10.Acceptability As An Immunization Record.
The immunization record obtained from the registry will be accepted as an 
official immunization record of the child for the purposes of satisfying the 
requirements of school immunization laws and for enrollment in day care 
facilities. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on February 9, 1998.
TRD-9801838
Susan K. Steeg
General Counsel
Texas Department of Health
Earliest possible date of adoption: March 22, 1998
For further information, please call: (512) 458-7236

CHAPTER 139.Abortion Facilities
The Texas Department of Health (department) proposes the repeal of sec.sec.139.1 
- 139.14, and proposes new sec.sec.139.1 - 139.8, 139.21
- 139.25, 139.31 - 139.34, and 139.41 - 139.60, concerning reporting and 
licensing of abortion facilities. 
Sections 139.1 - 139.14 are being proposed for repeal to reorganize the chapter 
and to adopt language to implement recent legislation and to address areas of 
concern identified by Texas Department of Health staff. The department initially 
adopted the sections on May 15, 1986, to implement the Texas Abortion Facility 
Reporting and Licensing Act (Act), Health and Safety Code, Chapter 245, created 
by the 69th Texas Legislature, 1985. Since the initial adoption, the department 
has adopted amendments and added new sections to establish standards for 
facilities administering general anesthesia, to adopt a system for reporting 
post-abortion complications, and to establish procedures for renewal of a 
license if a licensee is on active duty with the armed forces of the United 
States of America serving outside the State of Texas when it is time to renew an 
abortion facility license. Since the implementation of the existing rules, the 
department has experienced increased costs associated with regulating abortion 
facilities and has determined the need for stronger compliance measures. The 
legislature passed several amendments to the Act during the 75th Legislature, 
1997. House Bill 2856 amended Health and Safety Code, Chapter 245, by requiring 
the department to perform annual renewal inspections prior to the issuance of a 
renewal license; by requiring an abortion facility to include the facility's 
license number in its abortion advertisements; and by requiring the department 
to provide a toll-free information line to provide specific information relating 
to an abortion facility's performance. Senate Bill 407 also amended Health and 
Safety Code, Chapter 245, by providing the department with the authority to 
establish quality assurance measures for an abortion facility to evaluate its 
medical treatment and medical services and the coordination of these services 
provided at the facility; minimum standards relating to the management, 
ownership, and control of the facility; provisions for the release of 
confidential information to appropriate licensing boards to enforce state 
licensing laws; enforcement provisions to allow the department to immediately 
suspend or revoke a license when the health and safety of persons are 
threatened; and provisions for assessing an administrative penalty(ies) against 
a person who violates the Act or rules adopted under the Act and providing for 
an administrative review process. The department has increased licensing fees to 
make the program self-supporting, strengthened the application process and the 
enforcement provisions, and addressed the legislative amendments in the new 
sections. 
New sec.sec.139.1 - 139.8 establish the general provisions for abortion 
facilities. Specifically, the sections include the purpose and scope of the 
chapter; updated and clarified definitions for words and terms used throughout 
the rules; requirements for abortion facilities operating without a license; 
qualifications for exemption from licensing requirements; annual reporting 
requirements for licensed and unlicensed abortion facilities; requirements for 
providing public information; requirements for abortion facility advertising; 
and requirements for ensuring quality assurance. 
Obsolete definitions have been removed, new definitions have been added, and 
other definitions have been clarified to reflect current terminology used by the 
industry. Annual reporting requirements have been amended to allow electronic 
reporting and reporting on a monthly or quarterly basis. 
New sec.139.6 implements House Bill 2856 which requires abortion facilities to 
provide a woman, at the time the woman initially consults the facility, a 
written statement indicating the number of a toll-free telephone line maintained 
by the department. The department is required to provide the status of the 
license of any abortion facility; the date of the abortion facility's last 
inspection of the facility; any violation discovered during the last inspection 
that would pose a health risk to a patient at the facility; any challenge raised 
by the facility to the allegation that there was a violation; any corrective 
action that is acceptable to the department and that is being undertaken by the 
facility with respect to the violation; an administrative or civil penalty 
imposed against the facility or a physician who provides services at the 
facility; professional discipline imposed against a physician who provides 
services at the facility; and any criminal conviction of the facility or a 
physician who provides services at the facility that is relevant to services 
provided at the facility. 
New sec.139.7 also implements House Bill 2856 to require abortion facilities to 
include their license number in "any abortion advertisement directly relating to 
the provision of abortion services at the facility." An "abortion advertisement" 
means any communication that advertises the availability of abortion services at 
an abortion facility and that is disseminated through a public medium, including 
an advertisement in a newspaper or other publication (e.g., telephone book 
yellow pages), or television, radio, or any other electronic medium; and any 
commercial use of the name of the facility as a provider of abortion services, 
including the use of the name in a directory, listing, or pamphlet. New 
sec.139.8 implements Senate Bill 407 which requires the department to set 
minimum quality assurance standards for abortion facilities. An abortion 
facility will be required to have a quality assurance committee to evaluate all 
organized services related to patient care, including services furnished by 
contract; to ensure that there is a review of any abortion procedure 
complication(s) and make use of the findings in the development and revision of 
facility policies; to address issues of unprofessional conduct by any member of 
the facility's staff (including contract staff); to address infection control 
practices; to address medication therapy practices; to address the integrity of 
surgical instruments, medical equipment, and patient supplies; and to address 
services performed in the facility as they relate to appropriateness of 
diagnosis and treatment. The QA committee shall be responsible for identifying 
and addressing quality issues, and implementing corrective action plans as 
necessary. 
New sec.sec.139.21 - 139.25 establishes the licensing procedures for abortion 
facilities. Specifically, the sections cover the general provisions for 
licensure, licensing fees, application procedures and issuance of licenses, 
change of ownership or services and closure of an abortion facility, and time 
periods for processing and issuing a license. The general provisions for 
licensure state the minimum provisions for obtaining a birthing center license. 
The licensing fees have been increased to make the program self-supporting. The 
licensing fees will be increased from $1000 annually to $2,500 annually. The 
application procedures include the procedures for applying for an initial 
license, a first annual license, and a renewal license. First time applicants 
and change of ownership applicants will be required to submit a fee of $1,000 
and submit an application for an initial license which upon approval by the 
department will be effective for the 120 days. Within 45 days of receipt of the 
initial license, an applicant must submit an application and fee of $1,500 for 
the first annual license. This license will expire one year from the date of 
issuance of the initial license. The application fee for renewal of a license 
will be $2,500 annually. The Board of Health has the authority to set fee to 
cover administrative costs that are incurred by the department to regulate 
licensed abortion facilities. Publication of these rules provide the required 
notification of fee increase required by Texas Civil Statutes, Article IX, 
sec.77. 
The application procedures for obtaining a license have been updated to meet the 
need for stronger compliance measures. For example, additional information 
applicants for a license will be required to disclose concerning the applicant, 
the applicant's affiliates, and the managers of the applicant, are any proposed 
or final actions relating to the denial, suspension, or revocation of an 
abortion facility license in any state, a license for any health care facility 
in any state, or a home and community support services agency in any state; 
court civil or criminal action; surrendering a license before expiration of a 
license or allowing a license to expire in lieu of the department proceeding 
with enforcement action; federal or state (any state) felony arrests or 
convictions; federal or state Medicaid or Medicare sanctions or penalties 
relating to the operation of a health care facility or agency; operation of a 
health care facility or agency that has been decertified or terminated from 
participation in any state under Medicare or Medicaid; debarment, exclusion, or 
contract cancellation in any state from Medicare or Medicaid; federal or state 
(any state) criminal misdemeanor arrests or convictions; federal or state (any 
state) tax liens; unsatisfied final judgements(s); eviction involving any 
property or space used as an abortion facility or health care facility in any 
state; injunctive orders from any court; or unresolved final federal or state 
(any state) Medicare or Medicaid audit exceptions. 
The language regarding change of ownership has been clarified. When an abortion 
facility changes ownership, the buyer must submit a license application and 
license fee for initial license at least 60 calendar days prior to the desired 
date of the change ownership. The department is required to survey the facility 
within 60 days of the change of ownership. A facility is required to report 
business changes that affect the condition of a license within 15 calendar days 
of the effective date of the change. 
New sec.sec.139.31 - 139.34 establish the provisions for enforcement of the 
rules. Specifically, the sections cover on-site surveys and complaint 
investigations; license denial, suspension, and revocation; administrative 
penalties; and recovery of costs. 
New sec.139.31 establishes procedures for on-site surveys and complaint 
investigations. An on-site survey will determine if the requirements of the Act 
and the rules are being met. The department will conduct an on-site survey prior 
to issuing a first annual license and prior to renewing a facility license. 
These surveys will include a standard-by-standard evaluation of the facility. 
This section also includes procedures for the resolution of deficiencies. If the 
surveyor finds there is a deficiency(ies), the facility has the option to 
challenge any deficiency cited. Provisions for challenging a deficiency are 
included in this section as required by House Bill 2856. This section includes 
procedures for the investigation and resolution of valid complaints. The 
department will investigate all complaints relevant to the Act or these rules 
which are received against a licensed abortion facility. 
New sec.139.32 states the reasons the department may refuse to issue or renew a 
license; the reasons the department may suspend or revoke a license; the reasons 
the department may suspend or revoke an existing valid license or disqualify a 
person from receiving a license because of a person's conviction of a felony or 
misdemeanor if the crime directly relates to the duties and responsibilities of 
a licensed facility; the procedures for notification of a proposed denial, 
suspension, or revocation of a license; and the procedures for suspending or 
revoking a license on an emergency basis. A facility which has had an 
enforcement action that resulted in license revocation, suspension, emergency 
suspension, or denial or injunctive action may not reapply for a license for 
one-year following the effective date of the enforcement action. If the 
department suspends a license, the suspension will remain in effect until the 
department determines that the reason for the suspension no longer exists. 
Following an on-site survey in which deficiencies are cited, a facility may 
surrender its license before the expiration or allow its license to expire in 
lieu of the department proceeding with enforcement action. If a facility 
surrenders its license or allows the license to expire, the facility may not 
reapply for a license for six months. 
New sec.139.33 implements Senate Bill 407 which provides the department with the 
authority to assess administrative penalties against a person who violates the 
Act or a rule adopted under the Act. If, after an investigation of a possible 
violation and the facts surrounding that possible violation, the department 
determines that a violation has occurred, the department will give written 
notice of the violation to the person alleged to have committed the violation. 
In determining the amount of an administrative penalty to be assessed the 
department will consider the seriousness of the violation; the history of any 
previous violations; the amount necessary to deter future violations; any 
efforts made to correct the violation; and any other matters that justice may 
require. This section includes procedures for requesting a hearing and for 
requesting a judicial review of the commissioner of health's order, if the 
person so desires. A civil or administrative penalty collected under this 
section will be deposited in the state treasury to the credit of the general 
revenue fund. 
New sec.139.34 establishes procedures for the recovery of "reasonable" expenses 
and costs against a person in an administrative hearing if, as a result of the 
hearing, the person's license is denied, suspended, or revoked or if 
administrative penalties are assessed against the person. 
New sec.sec.139.41 - 139.60 establishes the minimum standards for licensed 
abortion facilities. Specifically, the sections cover policy development and 
review; delegation of authority and organizational structure; personnel 
policies; orientation, training, and demonstrated competency; personnel records; 
abortion facility staffing requirements and qualifications; facility 
administration; physical and environmental requirements; infection control 
standards; disclosure requirements; patient rights; patient 
education/information services; medical and clinical services; health care 
services; clinical records; emergency services; discharge and follow-up 
procedures; reporting requirements; anesthesia services; and other state and 
federal compliance requirements. The minimum standards for abortion facilities 
were developed with the advice of the Abortion Facility Ad Hoc Rules Task Force. 
Three subcommittees of the Task Force were appointed to work on three specific 
areas of concern: sterilization (infection control) issues, quality of care 
issues, and personnel qualification issues. The Task Force members include: a 
physician representative from Planned Parenthood of San Antonio; a 
representative from the Texas Family Planing Association; a nurse representative 
from the Association of Operating Room Nurses; an advocate representative from 
the Life Network and Heidi Group; a licensed mental health practitioner 
representative from Rio Grande Counseling Center; a facility owner 
representative from Fort Worth; and department representatives (a physician from 
the Division of Women's Health; a physician/epidemiologist from the Infectious 
Disease, Epidemiology, and Surveillance Division; a statistical analyst from the 
Bureau of Vital Statistics; the program director for the Abortion Facility 
Licensing Program, Health Facility Licensing Division (HFL); and a program 
specialist from the Rules and Policy Development Section, HFL. 
New sec.139.41 requires an abortion facility to develop, implement, enforce, and 
monitor written administrative policies; clinical policies; a policy concerning 
the prohibition of illegal remuneration for soliciting patient or patronage; a 
fire safety policy; and policies on decontamination, disinfection, and 
sterilization, and storage of sterile supplies. 
New sec.139.42 requires the licensee to appoint a medical consultant to be 
responsible for implementing and enforcing the clinical policies of the 
facility, and supervising all medical services provided at the facility; and to 
appoint an administrator to be responsible for implementing and supervising the 
administrative policies of the facility. 
New sec.sec.139.43 - 139.44 require the licensee to develop, implement, and 
enforce policies which shall govern all personnel staffed by the center; and to 
develop and implement a written orientation and training program to familiarize 
all employees with the facilities policies, philosophy, job responsibilities of 
all staff, and emergency procedures. New sec.139.45 contains the minimum 
requirements for personnel records that must be maintained by the facility on 
each employee. 
New sec.139.46 establishes the minimum staffing requirements and qualifications 
for licensed abortion facilities. An abortion facility is required to have an 
adequate number of qualified personnel to provide direct patient care and 
administrative and non-clinical services needed to maintain the operation of the 
facility. The minimum qualifications have been established for the medical 
consultant, the administrator, direct patient care staff, ancillary staff, and 
anesthesia staff. The medical consultant is required to be a physician licensed 
to practice medicine in the State of Texas. The administrator is required to 
either be a licensed health care professional; have a baccalaureate degree, a 
post graduate degree, or a professional degree and one year administrative 
experience in a health care or health-related field; or have a minimum of two 
years of administrative experience in a health care or health-related facility. 
The administrator must not have been employed in the last year as an 
administrator with another abortion facility or health-related facility at the 
time the facility was cited for violations of a licensing law or rule which 
resulted in enforcement action (license revocation, suspension, emergency 
suspension, or denial or injunctive action) taken against the abortion facility 
or health-related facility. An enforcement action does not include 
administrative penalties or civil penalties. If the department prevails in one 
enforcement action (e.g. injunctive action) against the facility 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 
enforcement action (e.g., the facility prevails), the prohibition does not 
apply. Also, the administrator must not have been convicted of certain felonies 
or misdemeanors. The staff providing medical services must include a physician 
licensed to practice medicine in the State of Texas and may include advanced 
practice nurses and physician assistants. The nursing staff includes registered 
nurses or licensed vocational nurses. The staff providing the education and 
information services (formerly called counseling services) at a facility must be 
trained to provide information on abortion procedures, alternatives, consent 
form, and family planning services and either have one year experience in a 
health care facility, have a baccalaureate degree in a counseling related field, 
or be a licensed professional mental health practitioner. The laboratory staff 
must have at least a high school education or general equivalency degree (GED) 
and specific training as determined and prescribed by the medical consultant. 
All ancillary staff must have training and experience as prescribed by the 
administrator and the medical consultant. The anesthesia staff must meet the 
minimum staffing requirements and qualifications for each level of sedation as 
established in sec.139.59 relating to anesthesia services. 
New sec.139.47 establishes the minimum responsibilities of the administrator of 
a facility. The main responsibility of an administrator will be to implement and 
supervise the administrative policies of the facility to ensure that facility 
operations comply with the Act and the rules adopted thereunder. 
The physical and environmental requirements have been updated and clarified in 
sec.139.48 to ensure that all patients of a licensed abortion facility are cared 
for in safe and sanitary environment and with equipment essential to the health 
and welfare of the patients. A new standard has been added to require that a 
facility must have the capacity to provide liquids to its patients and may 
provide commercially packaged food in individual servings. If other food is 
provided by the facility, it will be subject to the department's food service 
sanitation standards adopted at 25 TAC sec.sec.229.161 - 229.171. The department 
has identified the need for more stringent and standardized infection control 
standards for the prevention and control of the transmission of human 
immunodeficiency virus (HIV), hepatitis B virus (HBV), hepatitis C virus (HCV), 
Mycobacterium tuberculosis (TB), and Streptococcus species (SP). New sec.139.49 
establishes the minimum standards for infection control. These standards include 
universal/standard precautions; educational course requirements; cleaning and 
laundry requirements; and decontamination, disinfection, sterilization, and 
storage of sterile supplies. The standards for decontamination, disinfection, 
sterilization, and storage of sterile supplies are specifically stated in the 
rules for the purposes of ensuring a high standard of infection control and to 
standardize the infection control process. An abortion facility will be required 
to have written policies and procedures for the decontamination and 
sterilization activities performed at the facility. The policies include, but 
are not limited to, receiving, cleaning, decontaminating, disinfecting, 
preparing and sterilization of reusable items, as well as for assembly, 
wrapping, storage, distribution, and quality control of sterile items and 
equipment.
New sec.139.50 contains the disclosure requirements which require a facility to 
provide to a woman at the time of initial on-site consultation with the facility 
a written statement indicating the number of a toll-free telephone line which 
will be maintained by the department to provide specific information relating to 
licensed abortion facilities in Texas which is mandated by Senate Bill 2856; and 
a written statement identifying the department as the responsible agency for 
facility complaint investigations. 
New sec.139.51 establishes patient rights consistent with those of any other 
health care facilities. The licensee shall ensure that all patients are cared 
for in a manner and in an environment that enhances each patient's dignity and 
respect in full recognition of her individuality; receive care in a manner that 
maintains and enhances her self-esteem and self-worth; be allowed to make her 
own choice and self-determination; are ensured the right to personal privacy and 
confidentiality of her choices and decisions; have access to quality care and 
treatment consistent with available resources and generally accepted standards; 
and are allowed to ask additional questions after giving consent and to withdraw 
consent prior to the start of the procedure. New sec.139.52 covers standards for 
patient education/information services. The existing standard refers to such 
services as counseling services. The terminology was changed to "patient 
education/information" because these services are considered more of an 
educational and informational nature and are not usually provided by a licensed 
mental health practitioner. New language was added, however, to require a 
facility to refer a patient to a licensed mental health practitioner who 
provides therapeutic intervention, if the facility determines that it is 
warranted. 
New sec.139.53 establishes standards for the provision of medical and clinical 
services provided by an abortion facility. This section includes supervision and 
performance of medical and clinical services, informed consent, preoperative 
requirements, staffing requirements during and after the procedure, fetal tissue 
examination, discharge procedures, and disposal of special waste. New sec.139.54 
establishes standards for the provision of health care services. This section 
requires abortion facilities 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 comply with the facility's written policies and procedures. Provisions have 
been added to allow the administration of intravenous fluids or medications and 
extraction of blood for laboratory tests by licensed vocational nurses (LVNs) if 
the facility has documented that the LVN has received instruction and has 
demonstrated competence in performing such tasks. This section also covers the 
provision and supervision of health care services by student health care 
professionals. 
New sec.139.55 covers the minimum standards for establishing and maintaining a 
clinical record for each patient. The requirements for clinical records have 
been updated to reflect current standards and allow inactive patient records to 
be maintained as an original, a microfilmed copy, an optical disc imaging 
system, or a certified copy. Inactive patient records are required to be 
retrievable within two hours by the facility. An abortion facility may not 
destroy patient records that relate to any matter that is involved in litigation 
if the center knows the litigation has not been finally resolved. In the event 
an abortion facility closes, provisions have been added for the preservation of 
inactive records to ensure compliance with the rules. 
New sec.139.56 requires an abortion facility to have a readily accessible 
protocol in place for the management of medical emergencies. This section 
contains requirements for the transfer of patients requiring emergency care to a 
licensed hospital; and for personnel providing direct patient care.
New sec.139.57 covers discharge and follow-up referral procedures. This section 
requires an abortion facility to develop and implement written discharge 
instructions to be given to the patient upon discharge. The instructions must 
include a list of complications, a statement of the facility's plan to respond 
to the patient, and information concerning the need for a post-abortion 
examination. The facility must have a written policy and procedure for 
examination or referral of all patients who report complications and period 
review of the record keeping system for post-abortion complications to resolve 
potential problems. If a woman's death is a result of a complication of an 
abortion, the abortion facility is required to report the death to the 
department in accordance with the reporting requirements in sec.139.58. 
New sec.139.59 establishes the minimum requirements for the various levels of 
sedation (anesthesia) used at a facility. This section defines the levels of 
sedation; the minimum staffing, training, and knowledge required for each level 
of sedation; the care management for each level of sedation; and the clinical 
and equipment standards required for each level of sedation. 
New sec.139.60 specifically states other state and federal requirements that 
directly relate to the licensing of abortion facilities. The requirements 
include laboratory and pharmacy services, professional nurse and licensed 
vocational nurse reporting and peer review, occupational safety and health, 
physicians and physician assistants, prescription medical devices, and trade and 
consumer practices. 
The proposed new sections do not address the issues of practice of the licensed 
professional health care staff in the abortion facility; however abortion 
facilities will be responsible for ensuring that licensed health professionals 
practice within their scope of practice while working in the facilities. The 
clinicians practicing in the centers are subject to their respective regulatory 
and licensing boards. Issues about practice and complaints will be referred to 
the appropriate licensing boards and do not fall within the purview of the 
abortion facility regulations. 
In addition to the specific changes mentioned, other changes have been made to 
clarify and strengthen the intent of these sections. 
Bernie Underwood, Chief of Staff Services, Health Care Quality and Standards, 
has determined that for each year of the first five-year period the sections are 
in effect, there will be fiscal implications as a result of enforcing or 
administering the sections as proposed. The effect on state government will be 
an estimated increase in revenue from the licensing fees of approximately $5,000 
the first year that the sections will be in effect; and $77,500 each year 
thereafter for the next four years. The additional revenue generated will offset 
costs associated with administering these sections. There will be no effect on 
local government. 
Ms. Underwood has also determined that for each year of the first five years the 
sections are in effect, the public benefit anticipated as a result of enforcing 
the sections will be increased quality of care for the women choosing to have an 
abortion in a licensed abortion facility. There will be additional costs to 
small and large businesses, i.e. abortion facilities, as a result of the 
increase in licensing fees. First time applicants will be required to submit a 
fee of $1,000 for an initial license which will be effective for 120 days and 
will be required to submit an additional fee of $1,500 for a first annual 
license which will expire one year from the date of the issuance of the initial 
license. Subsequent renewal of a license will increase from $1000 annually to 
$2,500 annually. This represents an increase in costs to licensed facilities of 
$1,500 per year. The effective date of this fee increase will occur sometime in 
July, 1998. Other additional cost to abortion facilities, if any, will be based 
upon the facilities existing business structure and operation. There are no 
economic costs to persons (other than abortion facilities) who are required to 
comply with the sections as proposed. There is no anticipated impact on local 
employment. 
Comments on the proposal may be submitted to Julia R. Beechinor, Director, 
Health Facility Licensing Division, Texas Department of Health, 1100 West 49th 
Street, Austin, Texas 78756-3199, (Telephone (512) 834-6646). Comments will be 
accepted for a period of 30 days after publication of the proposal in the Texas 
Register. In addition, a public hearing will be held at the following time and 
place: 10:00 a.m., Wednesday, March 11, 1998, at the Texas Department of Health, 
Lecture Hall K-100, 1100 West 49th Street, Austin, Texas 78756.

SUBCHAPTER A.Abortion Facility Reporting and Licensing
25 TAC sec.sec.139.1-139.14
(Editor's note: The text of the following sections proposed for repeal will not 
be published. The sections may be examined in the offices of the Texas 
Department of Health or in the Texas Register office, Room 245, James Earl 
Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under the Texas Abortion Facility Reporting and 
Licensing Act, Health and Safety Code, Chapter 245, which provides the Board of 
Health (board) with the authority to adopt rules governing the licensing and 
regulation of abortion facilities; 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. 
The repeals affect Health and Safety Code, Chapter 245. 
sec.139.1.Purpose and Scope.
sec.139.2.Definitions.
sec.139.3.Fees.
sec.139.4.Standards for All Licensed Abortion Facilities.
sec.139.5.Unlicensed Facility.
sec.139.6.Exemptions.
sec.139.7.Application and Issuance of License for Initial Applicants.
sec.139.8.Inspections.
sec.139.9.Renewal of Annual License.
sec.139.10.Annual Reporting Requirements.
sec.139.11.Conditions of Annual License.
sec.139.12.License Denial, Suspension, or Revocation.
sec.139.13.Clinical and Equipment Standards for Licensed Facilities 
Administering Local Anesthesia.
sec.139.14.Clinical and Equipment Standards for Licensed Facilities 
Administering General Anesthesia.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on February 9, 1998.
TRD-9801840
Susan K. Steeg
General Counsel
Texas Department of Health
Earliest possible date of adoption: March 22, 1998
For further information, please call: (512) 458-7236

SUBCHAPTER A.General Provisions
25 TAC sec.sec.139.1-139.8
The new sections are proposed under the Texas Abortion Facility Reporting and 
Licensing Act, Health and Safety Code, Chapter 245, which provides the Board of 
Health (board) with the authority to adopt rules governing the licensing and 
regulation of abortion facilities; 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.
The new sections affect Health and Safety Code, Chapter 245. 

sec.139.1.Purpose and Scope.
(a) The purpose of this chapter is to implement the Texas Abortion Facility 
Reporting and Licensing Act, Health and Safety Code, Chapter 245. 
(b) This chapter establishes general provisions; licensing requirements and 
procedures; enforcement procedures; and minimum standards for licensed abortion 
facilities. 
(c) A person may not establish or operate an abortion facility in Texas without 
a license issued under this chapter, except as provided in sec.139.4 of this 
title (relating to Exemptions).

sec.139.2.Definitions.
The following words and terms, when used in this chapter, shall have the 
following meanings, unless the context clearly indicates otherwise. 
Abortion - Any act or procedure performed after pregnancy has been medically 
verified with the intent to cause the termination of a pregnancy other than for 
the purpose of either the birth of a live fetus or removing a dead fetus. This 
term does not include birth control devices or oral contraceptives. 
Abortion facility- A place where abortions are performed.
Act - Texas Abortion Facility Reporting and Licensing Act, Health and Safety 
Code, Chapter 245. 
Administrator - A person who: 
(A) is delegated the responsibility for the implementation and proper 
application of policies, programs, and services established for the abortion 
facility; and 
(B) meets the qualifications established in sec.139.46(2) of this title 
(relating to Abortion Facility Staffing Requirements and Qualifications).
Affiliate - With respect to an applicant or owner which is:
(A) a corporation - includes each officer, consultant, 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, consultant, 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, consultant, or the equivalent under the specific business arrangement 
and each parent company. 
Anesthesia levels - Levels of anesthesia include: 
(A) light sedation - The administration of oral medications for the reduction of 
anxiety as prescribed by a physician or physician extender; 
(B) moderate sedation - A medically controlled state of depressed consciousness 
(also known as conscious or intravenous sedation); and 
(C) deep sedation - A medically controlled state of depressed consciousness or 
unconsciousness from which the patient is not easily aroused resulting in the 
partial or complete loss of and inability to maintain a patent airway 
independently (also known as general anesthesia). 
Applicant- The owner of an abortion facility which is applying for a license 
under the Act. This is the person in whose name the license will be issued. 
Board - The Texas Board of Health.
Certification form - The document prepared by the Texas Department of Health and 
used by physicians to certify the medical indications supporting the judgment 
for the abortion of a viable fetus during the third trimester of pregnancy. 
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. 
Certified registered nurse anesthetist (CRNA) - A person who is currently 
licensed as a registered nurse, who has current certification from the Council 
of Certification- Recertification of the American Association of Nurse 
Anesthetist, and who is currently registered with the Board of Nurse Examiners 
as an advanced nurse practitioner.
Change of ownership - A sole proprietor who transfers all or part of the 
facility's ownership to another person or persons; the removal, addition, or 
substitution of a person or persons as a partner in a facility owned by a 
partnership; or a corporate sale, transfer, reorganization, or merger of the 
corporation which owns the facility if sale, transfer, reorganization, or merger 
causes a change in the facility's ownership to another person or persons. 
Clinical nurse specialist - A person who is currently licensed under the Nursing 
Practice Act, Texas Civil Statutes, Article 4513 et. seq. and recognized as 
clinical nurse specialist by the Board of Nurse Examiners.
Condition on discharge - A statement on the condition of the patient at the time 
of discharge. 
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 a person's 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 viruses and bacteria with a chemical 
germicide registered as a hospital disinfectant by the EPA.
Education/information staff - A professional or nonprofessional person who is 
trained to provide information on abortion procedures, alternatives, informed 
consent, and family planning services. 
Facility - An abortion facility as defined in this section.
Health care facility- Any type of facility or home and community support 
services agency licensed to provide health care in any state or is certified for 
Medicare (Title XVIII) or Medicaid (Title XIX) participation in any state. 
Health care worker - Any person who furnishes health care services in a direct 
patient care situation under a license, certificate, or registration issued by 
the State of Texas or a person providing direct patient care in the course of a 
training or educational program. 
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.). 
Immediate jeopardy to health and safety - A situation in which there is a high 
probability that serious harm or injury to patients could occur at any time or 
already has occurred and may well occur again if patients are not protected 
effectively from the harm or if the threat is not removed.
Licensed mental health practitioner - A person licensed in the State of Texas to 
provide counseling or psychotherapeutic services. 
Licensed vocational nurse (LVN)- A person who is currently licensed under Texas 
Civil Statutes, Article 4528c as a licensed vocational nurse. 
Licensee - A person or entity who is currently licensed as an abortion facility. 
Medical consultant - A physician who is designated to supervise the medical 
services of the facility. 
Nonprofessional personnel - Personnel of the facility who are not licensed or 
certified under the laws of this state to provide a service and must function 
under the delegated authority of a physician, registered nurse, or other 
licensed health professional who assumes responsibility for their performance in 
the abortion facility. 
Noncritical items - Items that come in contact with intact skin. 
Notarized copy- A sworn affidavit stating that attached copy(ies) are true and 
correct copies of the original documents. 
Patient- A female on whom an abortion is performed, but shall in no event be 
construed to include a fetus. 
Person - Any individual, firm, partnership, corporation, or association. 
Physician - An individual who is currently licensed to practice medicine under 
the Medical Practice Act, Texas Civil Statutes, Article 4495b.
Physician extender - A physician extender is: 
(A) an advance practice nurse - An individual who is a registered professional 
nurse currently licensed by the Board of Nurse Examiners (BNE) for the State of 
Texas, and who is prepared for advanced nursing practice by virtue of knowledge 
and skills obtained through a post-basic advanced practice nurse educational 
program of study acceptable to the BNE in accordance with Title 22, Chapter 221, 
Advanced Practice Nurses, sec.221.3 relating to Education. An advanced practice 
nurse acts independently and/or in collaboration with other health care 
professionals in the delivery of health care services.
Advanced practice nurses may include, but not be limited to, the following:
(i) certified registered nurse anesthetist; 
(ii) certified nurse midwife;
(iii) nurse practitioner;
(iv) clinical nurse specialist; and 
(v) other titles as approved by the BNE; or 
(B) a physician assistant - A physician assistant must be currently licensed 
under the Physician Assistant Licensing Act, Texas Civil Statutes, Article 4495-
1. 
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 
system(s) operation(s) of the facility as the system(s) operation(s) apply to 
the deficiency. 
Postprocedure infection - An infection acquired at or during an admission to a 
facility; there must be no evidence that the infection was present or incubating 
at the time of admission to the facility. Postprocedure infections and their 
complications that may occur after an abortion include, but are not limited to, 
endometritis and other infections of the female reproductive tract, laboratory-
confirmed or clinical sepsis, septic pelvic thrombophlebitis, and disseminated 
intravascular coagulopathy. 
Presurvey conference- A conference held with department staff and the applicant 
or his or her representative to review licensure standards, survey documents, 
and provide consultation prior to the on-site licensure survey. 
Primarily - As used in the Act, sec.245.004, and in sec.139.4(b) of this title 
(relating to Exemptions), the term "primarily" refers to the number of patients 
having abortions which represents 51% or more of the patients actually treated 
within the previous calendar year. 
Professional personnel - Patient care personnel of the facility currently 
licensed or certified under the laws of this state to use a title and provide 
the type of service for which they are licensed or certified.
Quality - The degree to which care meets or exceeds the expectations or 
standards set by the patient. 
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. 
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. 
Semicritical items- Items that come in contact with nonintact skin or mucous 
membranes. Semicritical items may include respiratory therapy equipment, 
anesthesia equipment, bronchoscopes, 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. 
Supervision - Authoritative procedural guidance by a qualified person for the 
accomplishment of a function or activity that includes initial direction and 
periodic inspection of the actual act of accomplishing the function or activity. 
Surveys - An onsite inspection by the department in which a standard-by-standard 
evaluation is conducted, at a minimum, of each requirement in: 
(A) sec.139.6 of this title (relating to Public Information; Toll-Free Telephone 
Number); 
(B) sec.139.7 of this title (relating to Unique Identifying Number; Disclosure 
in Advertisement); 
(C) sec.139.8 of this title (relating to Quality Assurance); and 
(D) Subchapter D of this chapter (relating to Minimum Standards for Licensed 
Abortion Facilities). 
Third trimester - A gestational period of not less than 26 weeks (following last 
-menstrual period (LMP)).

sec.139.3.Unlicensed Facility.
(a) If the Texas Department of Health (department) has reason to believe that a 
person or facility may be providing abortion services without a license as 
required by the Act, the person or facility shall be so notified in writing by 
certified mail, return receipt requested, and shall submit to the department the 
following information within 10 days of receipt of the notice: 
(1) an application for a license and the license fee; 
(2) a claim for exemption under sec.139.4 of this title (relating to 
Exemptions); or 
(3) any and all documentation necessary to establish that abortion services are 
not being provided. Documentation shall include a notarized statement attesting 
to the fact that abortion services are not provided and a statement of the 
type(s) of service(s) that are provided. 
(b) If the person or facility has submitted an application for a license, the 
application will be processed in accordance with sec.139.23 of this title 
(relating to Application Procedures and Issuance of Licenses).
(c) If the person or facility submits a claim for exemption, the exemption claim 
will be processed in accordance with sec.139.4 of this title. 
(d) If the person or facility submits sufficient documentation to establish that 
abortion services are not provided, the director shall so notify the person or 
facility in writing within 30 days that no license is required. If the 
documentation submitted is determined to be insufficient by the director, the 
person or facility shall be so notified in writing and shall have 10 days to 
respond. Following receipt of the response, the director shall then notify the 
person or facility in writing within 10 days of the determination. 
(e) If a person violates the licensing requirements of the Act or rules adopted 
under the Act, the department may petition the district court for a temporary 
restraining order to restrain the person from continuing the violation or 
operating without a license. 
(f) If a person operates a facility without a license as required by the Act and 
this chapter, the person is liable for a civil penalty of not less than $1,000 
nor more than $2,500 for each day of violation.

sec.139.4.Exemptions.
(a) If a facility is licensed under the Texas Hospital Licensing Law, Health and 
Safety Code, Chapter 241, the facility shall be exempt from the licensing 
requirements of the Act, but not from the reporting requirements in sec.139.5 of 
this title (relating to Annual Reporting Requirements).
(b) If the office of a physician who is licensed under the Medical Practice Act, 
Texas Civil Statutes, Article 4495b, is not utilized primarily for the purpose 
of performing abortions, the physician's office shall be exempt from the 
licensing requirements of the Act, but not from the reporting requirements. 
(c) If a person or facility is uncertain about whether or not licensing under 
the Act is required, a written claim for exemption, including all documentation 
supporting the exemption claim, may be submitted to the department. This 
documentation shall be a notarized affidavit attesting to the fact that the 
number of patients having abortions represents less than 51% of the patients 
actually treated within the previous calendar year. The affidavit document will 
be provided by the department. 
(d) The director shall evaluate the claim for exemption and notify the person or 
facility in writing of the proposed decision within 90 days following receipt of 
the claim for exemption. 
(e) If the proposed decision is to grant the claim for exemption, the department 
will provide written notice according to subsection (d) of this section. 
(f) If the claim for exemption is proposed to be denied, the person or facility 
so affected shall have the right to request informal reconsideration of the 
determination by the department. The request shall be made in writing, including 
specific reasons for exemption, within 10 days following receipt of the proposed 
denial. 
(g) If the person or facility does not request an appeal as provided in 
subsection (f) of this section, the right to appeal is deemed to be waived and 
the denial of the exemption becomes final 30 days following the person or 
facility's receipt of the proposed denial. 
(h) The person or facility must submit a completed application and licensing fee 
to the department within 10 days following the final denial of exemption. 
(i) If a person violates the licensing requirements of the Act or rules adopted 
under the Act, the department may petition the district court for a temporary 
restraining order to restrain the person from continuing the violation or 
operating without a license. 
(j) If a person operates a facility without a license as required by the Act and 
this chapter, the person is liable for a civil penalty of not less than $1,000 
nor more than $2,500 for each day of violation. 

sec.139.5.Annual Reporting Requirements.
(a) In accordance with the Texas Abortion Facility Reporting and Licensing Act 
(Act) , sec.245.011, all abortion facilities (including hospitals, ambulatory 
surgical centers, and physician offices, whether they are licensed under the Act 
or not, must submit to the department an abortion report on each abortion that 
was performed at the facility on at least an annual basis. The reporting period 
for each facility is January 1 - December 31 of each year. Each facility must 
submit the abortion report(s) to the department no later than January 31 of the 
subsequent year. While an abortion facility must submit the abortion reports on 
an annual basis, the facility may choose to submit the abortion reports on a 
monthly or quarterly basis for greater efficiency. The abortion reports must be 
submitted: 
(1) on forms prescribed by the department, by certified mail marked 
confidential; 
(2) on a floppy disk in a format prescribed by the department, by certified mail 
marked confidential; or 
(3) via modem in a format prescribed by the department.
(b) The first annual reporting period for a licensed facility commences on the 
day the initial license is issued. The report(s) must contain data for the 
calendar year in which the initial license is issued. If the first annual 
license is not issued, the report(s) must contain data from the date the initial 
license was issued through the date the initial license expired, was revoked, or 
was withdrawn. 
(c) If a change of ownership has occurred, the previous owner shall submit the 
report(s) commencing from the date of the previous reporting period and ending 
on the date the change in ownership of the facility occurred; the report(s) is 
due 30 days after the date of acquisition. The annual reporting period for the 
newly acquired facility commences on the day the initial license is issued and 
shall contain data for the calendar year in which the initial license is issued. 
If the first annual license is not issued, the report(s) must contain data from 
the date the initial license was issued through the date the initial license 
expired, was revoked, or was withdrawn. 
(d) The report(s) shall not identify, by any means, the physician performing the 
abortion or the patient on whom the abortion was performed. Each report shall 
include the following information: 
(1) whether or not the facility at which the abortion is performed is licensed 
under the Act; 
(2) the patient's year of birth, race, marital status, and state and county of 
residence; 
(3) the type of abortion procedure; 
(4) the date the abortion was performed; 
(5) whether the patient survived the abortion, and if the patient did not 
survive, the cause of death; 
(6) the period of gestation based on the best medical judgment of the attending 
physician at the time of the procedure; 
(7) the date, if known, of the patient's last menstrual cycle; 
(8) the number of previous live births of the patient; and 
(9) the number of previous induced abortions of the patient.
(e) All abortion reports are strictly confidential under the Act, sec.245.011, 
and may not be released except as authorized under sec.245.011.
(f) Failure to submit a report(s) in accordance with this section is punishable 
as a Class A misdemeanor in accordance with the Act, sec.245.011. 
(g) A physician who performs a third trimester abortion of a viable fetus with a 
biparietal diameter of 60 millimeters or greater shall comply with the following 
reporting requirements. 
(1) The physician shall obtain certification forms from the director of the 
Health Facility Licensing Division, Texas Department of Health, 1100 West 49th 
Street, Austin, Texas 78756, (512) 834-6646. 
(2) The physician shall provide on the certification form the following 
information: 
(A) the physician's name, address, telephone number; 
(B) the name, address, and telephone number of the facility at which the 
abortion was performed; 
(C) the date the abortion was performed; 
(D) the gestational age assessment and information used to establish length of 
pregnancy; 
(E) the type of abortion procedure performed; 
(F) the patient's date of birth, race, city, and state of residence; 
(G) a list of the medical indications to support that the abortion is authorized 
by the Medical Practice Act, Texas Civil Statutes, Article 4495b, 
sec.4.011(d)(2)-(3); and 
(H) the physician's signature and date. 
(3) The physician shall return by certified mail, marked confidential, the 
certification form and may submit any supporting documents to the director not 
later than the 30th day after the date the abortion was performed. 
(4) The department will retain the certification form and supporting documents 
as a cross-reference to the annual reporting requirements of the Act and this 
section. The certification form and supporting documents retained by the 
department are confidential. Any release of the documents will be in accordance 
with the provisions of the Texas Medical Practice Act, Texas Civil Statutes, 
Article 4495b. 
(5) The department will forward a copy of the certification form and supporting 
documents by certified mail, marked confidential, to the Texas Board of Medical 
Examiners within 30 days of the department's receipt of the documents. 
(6) A physician performing abortions at a licensed abortion facility who fails 
to report or submit the certification form may subject the licensed facility to 
denial, suspension, or revocation of the license in accordance with sec.139.32 
of this title (relating to License Denial, Suspension, and Revocation). 

sec.139.6.Public Information; Toll-Free Telephone Number.
(a) The department on request shall make the following information available to 
the public:
(1) the status of the license of any abortion facility; 
(2) the date of the last survey of the facility, any violation discovered during 
that inspection that would pose a health risk to a patient at the facility, any 
challenge raised by the facility to the allegation that there was a violation, 
and any corrective action that is acceptable to the department and that is being 
undertaken by the facility with respect to the violation; and 
(3) an administrative or civil penalty imposed against the facility or a 
physician who provides services at the facility, professional discipline imposed 
against a physician who provides services at the facility, and any criminal 
conviction of the facility or a physician who provides services at the facility 
that is relevant to services provided at the facility. 
(b) All information disclosable under subsection (a) of this section regarding 
any violation discovered during the survey that would pose a health risk to a 
patient at the facility shall not be disclosed following an on-site survey until 
plans of correction are submitted and accepted by the department and, if 
applicable, a facility challenge to a deficiency(ies) is resolved in accordance 
with sec.139.31(c)(8) of this title (relating to On-site Surveys and Complaint 
Investigations). 
(c) Subsection (a) of this section does not require the department to provide 
information that is not in the possession of the department. In accordance with 
sec.245.017(b)of the Act, the Texas State Board of Medical Examiners (board) is 
required to provide to the department information in the possession of the board 
that the department is required to provide under subsection (a) of this section. 
(d) In accordance with Health and Safety Code, sec.245.017(c), the department 
shall maintain a toll-free telephone number that a person may call to obtain the 
information described by subsection (a) of this section.
(e) An abortion facility shall provide to a woman, at the time the woman 
initially consults the facility, a written statement indicating the number of 
the toll-free telephone line maintained under subsection (d) of this section. 
The written statement must be available in English and Spanish.
(1) The following form is an example of the statement in English.
Figure 1: 25 TAC sec.139.6 (e)(1) 
(2) The following form is an example of the statement in Spanish. 
Figure 2: 25 TAC sec.139.6 (e)(2) 
(f) This section does not authorize the department to the release of the name, 
address, or phone number of any employee or patient of an abortion facility or 
of a physician who provides services at an abortion facility. 

sec.139.7.Unique Identifying Number; Disclosure in Advertisement.
(a) The department shall assign to each licensed abortion facility a unique 
license number that may not change during the period the facility is operating 
in this state. 
(b) An abortion facility shall include the unique license number assigned to the 
facility by the department in any abortion advertisement directly relating to 
the provision of abortion services at the facility. If more than one location is 
advertised in a single advertisement, the license number(s) for each location 
shall be included in the advertisement. 
(c) In this section, "abortion advertisement" means: 
(1) any communication that advertises the availability of abortion services at 
an abortion facility and that is disseminated through a public medium, including 
an advertisement in a newspaper or other publication or an advertisement on 
television, radio, or any other electronic medium; or 
(2) any commercial use of the name of the facility as a provider of abortion 
services, including the use of the name in a directory, listing, or pamphlet. 

sec.139.8.Quality Assurance.
(a) Quality Assurance (QA) Program. An abortion facility must maintain a QA 
program in the facility which shall be implemented by a QA committee. 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 by the QA Committee. 
The QA program shall include measures for quality improvement in the measurement 
of the facility's quality delivery. Quality assurance documents pertinent to the 
facility shall be kept within the facility. 
(b) QA committee membership. At a minimum, the QA committee must consist of at 
least: 
(1) the medical consultant designated by the facility; 
(2) a physician extender, a registered nurse, or a licensed vocational nurse; 
and 
(3) at least two other members of the facility's staff.
(c) Frequency of QA committee meetings. The QA committee, by consensus, shall 
meet at least quarterly to identify issues with respect to which quality 
assurance activities are necessary. 
(d) Minimum responsibilities. The QA committee shall: 
(1) evaluate all organized services related to patient care, including services 
furnished by contract; 
(2) ensure that there is a review of any abortion procedure complication(s) and 
shall make use of the findings in the development and revision of facility 
policies; 
(3) address issues of unprofessional conduct by any member of the facility's 
staff (including contract staff); 
(4) monitor infection control as outlined in sec.139.49 of this title (relating 
to Infection Control Standards) and postprocedure infections as outlined in 
sec.139.41 of this title (relating to Policy Development and Review); 
(5) address medication therapy practices; 
(6) address the integrity of surgical instruments, medical equipment, and 
patient supplies; and 
(7) address services performed in the facility as they relate to appropriateness 
of diagnosis and treatment. 
(e) Quality issues. The QA committee shall identify and address quality issues, 
implement corrective action plans as necessary. 
(1) Identifying quality issues that necessitate corrective action. The QA 
committee shall be responsible for identifying issues that necessitate 
corrective action by the committee, such as issues which negatively affect 
quality of care or services provided to patients. 
(2) Plan of corrective action. The QA committee shall develop and implement 
plans of action to correct identified quality deficiencies.
(3) Remedial action. The QA committee shall take and document remedial action to 
address deficiencies found through the QA program. The facility shall document 
the outcome of the remedial action. 
(f) Departmental review. 
(1) The department may not require disclosure of QA committee records except 
insofar as such disclosure is related to the compliance of the QA committee with 
this section. 
(2) Department surveyors shall verify that the facility has a QA committee which 
addresses quality concerns and that facility staff know how to access that 
process. 
(3) The department will not use good faith efforts by the QA committee to 
identify and correct quality deficiencies as a basis for deficiency(ies), 
citation(s), or sanction(s). 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on
February 9, 1998.
TRD-9801841
Susan K. Steeg
General Counsel
Texas Department of Health
Earliest possible date of adoption: March 22, 1998
For further information, please call: (512) 458-7236

SUBCHAPTER B.Licensing Procedures
25 TAC sec.sec.139.21-139.25
The new sections are proposed under the Texas Abortion Facility Reporting and 
Licensing Act, Health and Safety Code, Chapter 245, which provides the Board of 
Health (board) with the authority to adopt rules governing the licensing and 
regulation of abortion facilities; 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. 
The new sections affect Health and Safety Code, Chapter 245.

sec.139.21.General Requirements for Licensure.
An applicant for an abortion facility license must meet the following 
requirements. 
(1) If the applicant for a license is an individual, the applicant must be at 
least 18 years of age. 
(2) An abortion facility is required to apply for a separate license for each 
place of business. 
(3) An abortion facility may not admit a patient for an abortion procedure until 
it has received an initial license. 
(4) The licensed location must be in Texas. 
(5) The licensee of the abortion facility is responsible for ensuring the 
facility's compliance with the Act and this chapter. 
(6) An abortion facility license must be renewed annually.
(7) An abortion facility shall prominently and conspicuously post the license 
issued under the Act for display in a public area of the facility that is 
readily accessible to patients, employees, and visitors.
(8) An abortion facility license may not be transferred or assigned from one 
person to another person. 
(9) An abortion facility shall have the financial ability to carry out its 
functions under the Act and this chapter. 

sec.139.22.Fees.
(a) The schedule of fees for an abortion facility license is as follows: 
(1) initial license fee - $1,000; 
(2) first annual license fee - $1,500; and 
(3) annual renewal license fee - $2,500. 
(b) The department will not consider an application as officially submitted 
until the applicant pays the applicable 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 certified check, money order, or personal check 
made payable to the Texas Department of Health.
(e) The department may make periodic reviews of its fee schedule to ensure that 
the fees imposed are in amounts reasonable and necessary to defray the cost to 
the department of administering the Act. 

sec.139.23.Application Procedures and Issuance of Licenses.
(a) Purpose. This section establishes the application procedures that an 
abortion facility must follow to obtain a license to operate as a licensed 
abortion facility in Texas. 
(b) Definitions. The following terms when used in this section shall have the 
following meaning. 
(1) Initial license - A 120-day license which is issued by the department to all 
first-time applicants for an abortion facility license (including those from 
unlicensed operating facilities and licensed facilities for which a change of 
ownership is anticipated), that meet the requirements of the Act and this 
chapter and have successfully completed the application procedures for an 
initial license as set out in subsection (c) of this section. This license 
expires 120 days after issuance. 
(2) First annual license - A license issued by the department which supersedes 
the initial license and will expire 12 months from the date of issuance of the 
initial license. This license is issued to a holder of an initial license that 
meets the requirements of the Act and this chapter and has completed the 
application procedures for a first annual license as set out in subsection (d) 
of this section. 
(3) Annual renewal license - A license issued by the department annually (second 
and subsequent years) to an licensed abortion facility that meets all 
requirements of Act and this chapter and has completed the application 
procedures for obtaining an annual renewal license as set out in subsection (e) 
of this section. 
(c) Application procedures for an initial license. This subsection establishes 
the application procedures for obtaining an initial license. 
(1) Request for an application. Upon written request for an abortion facility 
license, the Texas Department of Health (department) will furnish a person with 
an application packet and a copy of the Act and this chapter. 
(2) Application requirements. The applicant shall submit the information listed 
in subparagraph (D) of this paragraph to the department within six months from 
the date the department mails the application packet to the applicant. 
(A) If the department does not receive the information listed in subparagraph 
(D) of this paragraph within six months from the mailing date, the applicant 
must request a new application packet. 
(B) An applicant shall not misstate a material fact on any documents required to 
be submitted under this subsection. 
(C) The application form must be accurate and complete and must contain original 
signatures. The initial license fee must accompany the application. 
(D) The following documents must be submitted with the original application form 
and shall be originals or notarized copies: 
(i) information on the applicant including name, street address, mailing 
address, social security number or Franchise Tax ID#, date of birth, and 
driver's license number; 
(ii) the name, mailing address, and street address of the abortion facility. The 
address provided on the application must be the address from which the abortion 
facility will be operating and providing services;
(iii) the telephone number of the facility, the telephone number where the 
administrator can usually be reached when the facility is closed, and if the 
facility has a fax machine, the fax number; 
(iv) 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;
(v) a list of any businesses with which the applicant subcontracts and in which 
the persons listed under clause (iv) of this subparagraph hold any percentage of 
the ownership; 
(vi) if the applicant has held or holds an abortion facility license or has been 
or is an affiliate of another licensed facility, the relationship, including the 
name and current or last address of the other facility and the date such 
relationship commenced and, if applicable, the date it was terminated;
(vii) if the facility 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;
(viii) a notarized statement attesting that the applicant is capable of meeting 
the requirements of this chapter; 
(ix) 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; 
(x) an organizational structure of the staffing for the abortion facility. The 
organizational structure shall include full disclosure in writing of the names 
and addresses of all owners and persons controlling any ownership interest in 
the abortion facility. In the case of corporations, holding companies, 
partnerships, and similar organizations, the names and addresses of officers, 
directors, and stockholders, both beneficial and of record, when holding any 
percent, shall be disclosed; 
(xi) the name(s), address(es), and Texas physician license number(s) of the 
physician(s) (including the facility's designated medical consultant), and all 
physician extenders who will provide services at the abortion facility; 
(xii) the following data concerning the applicant, the applicant's affiliates, 
and the managers of the applicant: 
(I) denial, suspension, or revocation of an abortion facility license in any 
state, a license for any health care facility or a license for a home and 
community support services agency (agency) in any state; or any other 
enforcement action, such as (but not limited to) court civil or criminal action 
in any state; 
(II) denial, suspension, or revocation of or other enforcement action against an 
abortion facility license in any state, a license for any health care facility 
in any state, or a license for an agency in any state 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 or agency; 
(VI) operation of a health care facility or agency that has been decertified or 
terminated from participation in any state under Medicare or Medicaid; or 
(VII) debarment, exclusion, or contract cancellation in any state from Medicare 
or Medicaid; and 
(xiii) 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 an abortion facility or 
health care facility in any state; 
(V) injunctive orders from any court; or 
(VI) unresolved final federal or state (any state) Medicare or Medicaid audit 
exceptions. 
(3) Applicant copy. The applicant shall retain a copy of all documentation that 
is submitted to the department. 
(4) Application processing. Upon the department's receipt of the application 
form, the required information described in paragraph (2)(D) of this subsection, 
and the initial license fee from an applicant, the department shall review the 
material to determine whether it is complete and correct.
(A) The time periods for reviewing the material shall be in accordance with 
sec.139.25 of this title (relating to Time Periods for Processing and Issuing a 
License). 
(B) If an abortion facility receives a notice from the department that some or 
all of the information required under paragraph (2)(D) of this subsection is 
deficient, the facility shall submit the required information no later than six 
months from the date of the notice.
(i) A facility 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.
(ii) A facility 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. 
(5) Withdrawal from the 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. 
(6) Issuance of an initial license. 
(A) The time periods for processing an initial application shall be in 
accordance with sec.139.25 of this title. 
(B) Effective period of an initial license. The initial license is valid for 120 
days. The initial license expires on the last day of the month ending the 120-
day licensure period. 
(C) Presurvey conference. Once the department has determined that the 
application form, the information required to accompany the application form, 
and the initial license fee are complete and correct, the department shall 
schedule a presurvey conference with the applicant in order to inform the 
applicant or his or her designee of the standards for the operation of the 
abortion facility. The department, at its discretion, may waive the pre-survey 
conference upon recommendation by the surveyor. If the department waives the 
presurvey conference, the department will issue an initial license to the 
facility and an application for the facility's first annual license. 
(D) Presurvey recommendation. After the presurvey conference has been held, the 
department will: 
(i) issue an initial license to the owner of a facility and the application for 
the facility's first annual license, if the facility is found to be in 
compliance with department's requirements for initial licensure; or 
(ii) deny the application if the facility has not complied with the department's 
requirements for issuing an initial license. The procedure for denial of a 
license shall be in accordance with sec.139.32 of this title (relating to 
License Denial, Suspension, and Revocation). 
(d) Application procedures for the first annual license. 
(1) Within 45 days of receipt of the initial license and the application for a 
first annual license, the facility shall complete the application in accordance 
with this subsection and shall submit the license fee for a first annual 
license. 
(2) The application form shall include all the documents required in paragraph 
(5) of this subsection. 
(3) An applicant shall not misstate a material fact on any documents required to 
be submitted under this subsection. 
(4) The application form and all documents must be accurate and complete and 
must contain original signatures. 
(5) The following documents must be submitted with the first annual application 
form and must be originals or notarized copies:
(A) information on the applicant, including name, street address, mailing 
address, social security number or Franchise Tax ID number, date of birth, and 
drivers license number; 
(B) the name, mailing address, and street address of the abortion facility. The 
address provided on the application must be the address from which the abortion 
facility will be operating and providing services; 
(C) the telephone number of the facility, the telephone number where the 
administrator can usually be reached when the facility is closed, and if the 
facility has a fax machine, the fax number; 
(D) 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;
(E) a notarized statement attesting that the applicant is capable of meeting the 
requirements of this chapter; 
(F) 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; 
(G) an organizational structure of the staffing for the abortion facility. The 
organizational structure shall include full disclosure in writing of the names 
and addresses of all owners and persons controlling any percent in the abortion 
facility. In the case of corporations, holding companies, partnerships, and 
similar organizations, the names and addresses of officers, directors, and 
stockholders, both beneficial and of record, when holding any percent, shall be 
disclosed; and 
(H) the name(s), address(es), and Texas physician license number(s) of the 
physician(s), all physician extenders and if applicable Certified Registered 
Nurse Anesthetist who will provide services at the abortion facility; this shall 
include the designated medical consultant. 
(6) A department representative shall survey the abortion facility in accordance 
with sec.139.31 of this title (relating to On-Site Surveys and Complaint 
Investigations) within 60 days after the issuance of an initial license. 
(A) If the department determines that a facility is not in compliance with the 
provisions of the Act or this chapter after the initial onsite survey, the 
department shall notify the facility no later than 30 days prior to the 
expiration date of the initial license of the proposed denial of the first 
annual license. Notification shall be in accordance with sec.139.32 of this 
title. 
(B) If the department determines that a facility is in compliance with the Act 
and this chapter after the initial onsite survey, the department will issue the 
facility its first annual license. The first annual license shall expire: 
(i) in the next year, on the last day of the month preceding the effective date 
of the initial license if the initial license is issued on the first day of a 
month; or 
(ii) on the last day of the twelfth month from the effective date of the initial 
license if the initial license was effective on the second or any subsequent day 
of a month. 
(7) If for any reason, an applicant decides not to continue the application 
process, the applicant must submit to the department a written request to 
withdraw its application. If an initial license has been issued, the applicant 
shall cease providing abortion services and return the initial license 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.
(8) Continuing compliance by the abortion facility with the provisions of the 
Act and this chapter is required during the first annual license period. 
(e) Application procedures for annual renewal of a license.
(1) The department will send notice of expiration of a license to the licensee 
at least 60 days before the expiration date of an annual 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 renewal license. 
(2) The licensee shall submit the following items to the department by certified 
mail, marked confidential, and postmarked no later than 30 days prior to the 
expiration date of the license: 
(A) a complete and accurate renewal application form; 
(B) current updated documents containing all the information required in 
subsection (c)(2)(D) of this section; and 
(C) the renewal license fee. 
(3) A facility shall not misstate a material fact on any documents required to 
be submitted to the department or required to be maintained by the facility in 
accordance with the provisions of the Act and this chapter. 
(4) A department surveyor shall survey an abortion facility in accordance with 
sec.139.31(c) of this title prior to the expiration of the facility's annual 
license. 
(5) If a licensee makes timely and sufficient application for renewal, the 
license will not expire until the department issues the annual renewal license 
or until the department denies renewal of the license. 
(A) The department shall issue a renewal license to a licensee who meets the 
minimum standards for a license in accordance with the provisions of the Act and 
this chapter. 
(B) The department may propose to deny the issuance of a renewal license if: 
(i) based on the survey report, the department determines that the abortion 
facility does not meet or is in violation of any of the provisions of the Act or 
this chapter; 
(ii) renewal is prohibited by the Texas Education Code, sec.57.491, relating to 
defaults on guaranteed student loans; or 
(iii) a facility discloses anything in subsection (c)(2)(D)(xii) and (xiii) of 
this section. 
(6) 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. 
(7) If a suspension of a license overlaps a renewal date, the suspended license 
holder shall comply with the renewal procedures in this subsection; however, the 
department may not renew the license until the department determines that the 
reason for suspension no longer exists. 
(8) If the department revokes or does not renew a license, a person may apply 
for an initial license by complying with the requirements of the Act and 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. 
(9) Upon revocation or nonrenewal, a license holder shall return the original 
license to the department. 
(10) The procedures for revocation, suspension, or denial of a license shall be 
in accordance with sec.139.32 of this title. 
(f) Failure to timely renew a license. 
(1) General. 
(A) If a licensee fails to timely renew a license in accordance with subsection 
(e) of this section, the department shall notify the licensee that the facility 
must cease operation on the expiration date of the license.
(B) To continue providing services at the abortion facility after the expiration 
of the license, the owner must apply for an initial license in accordance with 
subsection (c) 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 facility 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. 
(g) Frequency of surveys. Surveys of the abortion facility shall be performed at 
a frequency prescribed by and in accordance with sec.139.31 of this title 
(relating to On-Site Surveys and Complaint Investigations).

sec.139.24.Change of Ownership or Services and Closure of an Abortion Facility.
(a) The following provisions apply to change of ownership of the abortion 
facility and affect the condition of a license. 
(1) A licensee shall not transfer or assign its license from one person to 
another person. 
(2) The abortion facility shall not materially alter any license issued by the 
department. 
(3) A person who desires to receive a license in its name for a facility 
licensed under the name of another person or to change the ownership of any 
facility 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.139.23(c) of this title (relating to 
Application Procedures and Issuance of Licenses).
(4) 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. 
(5) The presurvey conference may, at the department's discretion, be waived for 
an applicant of a licensed facility for a change in control of ownership. If the 
presurvey conference is waived, the department will issue an initial license to 
the new owner of the facility. 
(6) When a change of ownership has occurred the department shall perform an on-
site survey of the facility within 60 days from the effective date of the change 
of ownership. 
(7) The previous owner's license shall be void on the effective date of the 
change of ownership. 
(8) 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). 
(9) 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 an abortion facility changes its business name, business address, 
telephone number of the facility, administrator's telephone number, or fax 
number (if available), the administrator must notify the department in writing 
within 15 calendar days after the effective date of the change.
(2) If an abortion facility changes its administrator, the facility shall 
provide the name of the new administrator and effective date to the department 
in writing no later than 15 calendar days following such change. 
(c) The licensee shall notify the department in writing within 15 calendar days 
when an abortion facility ceases operation. The licensee shall return the 
original license to the department. 

sec.139.25.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.139.23(c)(2)(D) of this title (relating to Application Procedures and 
Issuance of Licenses). 
(3) An application for a first annual license is complete when the department 
has received, reviewed, and found acceptable the information described in 
sec.139.23(d)(2) and (d)(5) of this title. 
(4) An application for a renewal license is complete when the department has 
received, reviewed, and found acceptable the information described in 
sec.139.23(e)(2) of this title. 
(5) An application for a change of ownership license is complete when the 
department has received, reviewed, and found acceptable the information 
described in sec.139.24 of this title (relating to Change of Ownership or 
Services and Closure of an Abortion Facility). 
(b) Time periods. An application from an abortion facility for an initial, first 
annual, annual 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 facility 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 for initial, annual 
renewal, and change of ownership applications; and 30 days for first annual 
applications. 
(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 for initial, renewal and change of ownership 
applications, 30 days for first annual applications.
(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 Hearings) are applicable. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on February 9, 1998.
TRD-9801842
Susan K. Steeg
General Counsel
Texas Department of Health
Earliest possible date of adoption: March 22, 1998
For further information, please call: (512) 458-7236

SUBCHAPTER C.Enforcement
25 TAC sec.sec.139.31-139.34
The new sections are proposed under the Texas Abortion Facility Reporting and 
Licensing Act, Health and Safety Code, Chapter 245, which provides the Board of 
Health (board) with the authority to adopt rules governing the licensing and 
regulation of abortion facilities; 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. 
The new sections affect Health and Safety Code, Chapter 245.

sec.139.31.On-site Surveys and Complaint Investigations.
(a) General. An on-site survey shall determine if the requirements of the Act 
and the rules are being met. 
(1) An authorized representative of the department (surveyor) may enter the 
premises of a license applicant or license holder at reasonable times during 
business hours to conduct an on-site survey incidental to the issuance of a 
license, and at other times as it considers necessary to ensure compliance with: 
(A) the Act and this chapter; 
(B) an order of the commissioner of health (commissioner);
(C) a court order granting injunctive relief; or 
(D) other enforcement actions. 
(2) The surveyor is entitled to access all books, records, or other documents 
maintained by or on behalf of the facility to the extent necessary to ensure 
compliance with the Act, this chapter, an order of the commissioner, a court 
order granting injunctive relief, or other enforcement action. The department 
shall maintain the confidentiality of facility records as applicable under 
federal or state law. Ensuring compliance includes permitting photocopying by a 
department surveyor or providing photocopies to a department surveyor of any 
records or other information by or on behalf of the department as necessary to 
determine or verify compliance with the Act or this chapter.
(3) By applying for or holding a license, the facility consents to entry and 
survey of the facility by the department or representative of the department in 
accordance with the Act and this chapter. 
(b) Schedules, timelines, and frequency(ies) of survey. 
(1) Initial survey for the issuance of the first annual license. A department 
surveyor shall conduct an initial survey in accordance with the survey 
procedures set out in subsection (c) of this section within 60 calendar days of 
the date of issuance of the initial license to determine if the abortion 
facility meets the requirements of the Act and this chapter for licensing.
(2) Renewal survey. A department surveyor shall perform an on-site survey prior 
to renewal of a facility license. 
(3) Complaint investigation. The department surveyor shall perform an on-site 
investigation if a facility has demonstrated noncompliance with the Act or this 
chapter, or to investigate a complaint received by the department. 
(c) 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 abortion facility, of the 
date and time of the survey. 
(2) The department's surveyor shall hold a conference with the person who is in 
charge of an abortion facility 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 facility when the survey is 
completed, and the surveyor shall identify any records that were duplicated. Any 
original facility records that are removed from a facility shall be removed only 
with the consent of the facility. 
(3) Except for a complaint investigation or a follow-up visit, an on-site survey 
will include a standard-by-standard evaluation to determine compliance at a 
minimum of each of the requirements in: 
(A) sec.139.6 of this title (relating to Public Information; Toll-Free Telephone 
Number); 
(B) sec.139.7 of this title (relating to Unique Identifying Number; Disclosure 
in Advertisement); 
(C) sec.139.8 of this title (relating to Quality Assurance); and 
(D) Subchapter D of this chapter (relating to Minimum Standards for Licensed 
Abortion Facilities). 
(4) The department's authorized representative shall hold an exit conference and 
fully inform the person who is in charge of the facility of the preliminary 
finding(s) 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 facility. 
(5) After the survey is completed, the department shall provide the 
administrator of the facility specific and timely written notice of the findings 
of the survey in accordance with paragraph (8) of this subsection.
(6) If the department determines that the facility is in compliance with minimum 
standards at the time of the on-site inspection, the department will send a 
license to the facility, if applicable. 
(7) If the surveyor finds there are deficiencies, the department shall provide 
the facility with a statement of the deficiencies; the surveyor's recommendation 
for further action; or if there are no deficiencies found, a statement 
indicating this fact. 
(8) If the department representative finds there are deficiencies, the facility 
and the department shall comply with the following procedure. 
(A) The department shall provide the facility with a statement of deficiencies 
onsite at the time of the exit conference or within 10 days of the exit 
conference. 
(B) The facility 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 facility shall have the option to challenge any deficiency cited after 
receipt of the statement of deficiencies. A challenge to a deficiency(ies) shall 
be in accordance with this subparagraph. 
(i) An initial challenge to a deficiency(ies) shall be submitted in writing no 
later than five days from the facility's receipt of the statement of 
deficiencies to the program director for abortion facility licensing, Health 
Facility Licensing Division, Texas Department of Health, 1100 West 49th Street, 
Austin, Texas 78756-3199. The initial written challenge shall include any and 
all documents supporting the facility's position. 
(ii) If the initial challenge is favorable to the department, the facility may 
request a review of the initial challenge by submitting a written request to the 
Director, Health Facility Licensing Division, Texas Department of Health, 1100 
West 49th Street, Austin, Texas 78756-3199. The facility shall submit its 
written request for review of the initial challenge no later than five days of 
its receipt of the department's response to the initial challenge. The 
department will not accept or review any documents that were not submitted with 
the initial challenge. A determination by the Director, Health Facility 
Licensing Division, relating to a challenge to a deficiency(ies) will be 
considered the final determination by the department.
(iii) The department shall respond to any written challenge submitted under 
clauses (i) or (ii) of this subparagraph no later than 10 days from its receipt. 
(D) 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 facility and request that the plan of correction 
be modified by telephone or resubmitted no later than 10 calendar days from 
receipt of such request by the facility. 
(E) If the facility does not come into compliance by the required date of 
correction, the department may propose to deny, suspend, or revoke the license 
in accordance with sec.139.32 of this title (relating to License Denial, 
Suspension, and Revocation). 
(F) Acceptance of a plan of correction by the department does not preclude the 
department from taking enforcement action as appropriate under sec.139.32 of 
this title. 
(9) The department shall refer issues and complaints relating to the conduct or 
action(s) by licensed health care professionals to their appropriate licensing 
boards. 
(d) Subsequent surveys. 
(1) The department shall conduct an on-site survey annually prior to renewing a 
facility license. 
(2) The department may conduct an on-site survey under the following 
circumstances: 
(A) a change of ownership of a licensed facility has occurred;
(B) the facility has not demonstrated compliance with standards; or 
(C) complaints relating to regulatory requirements against the facility have 
been received by the department. 
(e) Complaints. 
(1) In accordance with sec.139.50 of this title (relating to Disclosure 
Requirements), all licensed abortion facilities are required to provide the 
patient and her guardian, if present, if the patient is a minor at time of the 
initial visit or if guardianship is required, with a written statement that 
complaints relating to the abortion facility may be registered with the 
Director, Health Facility Compliance Division, Texas Department of Health, 1100 
West 49th Street, Austin, Texas 78756. 
(2) The department will evaluate all complaints against licensed abortion 
facilities. All complaints submitted to the department must be in writing and 
signed by the complainant. Only those allegations determined to be relevant to 
the Act or this chapter will be authorized for investigation. All information 
pertaining to a complaint is strictly confidential. 
(3) The department or its authorized representative may enter the premises of an 
applicant's facility or a licensed facility during normal business hours as 
necessary to assure compliance with the Act and this chapter. The investigation 
may be conducted on-site, announced or unannounced, or may be investigated by 
phone or mail. 
(4) Conduct of the on-site investigation will include, but not be limited to: 
(A) a conference prior to commencing the on-site investigation for the purpose 
of explaining the nature and scope of the investigation between the department's 
authorized representative and the administrator of the abortion facility; 
(B) an inspection of the facility; 
(C) an inspection of medical and personnel records, administrative files, 
reports, records, or working papers; 
(D) an interview with any physician or other health care practitioner, including 
abortion facility personnel who care for the recipient of abortion services; 
(E) a conference at the conclusion of the inspection between the department's 
representative and the administrator or his or her designee of the facility; and 
(F) identification by the department's representative of any facility documents 
that have been reproduced. 
(5) If the department finds that there are deficiencies following the on-site 
inspection, the provisions of subsection (c)(7) and (8) of this section will 
apply. 
(6) The department will review the report of the investigation and determine the 
validity of the complaint. 

sec.139.32.License Denial, Suspension, and Revocation.
(a) The department may refuse to issue or renew a license for a facility if the 
facility: 
(1) fails to comply with any provisions of the Act or this chapter; or 
(2) is not in compliance with minimum standards for licensure at least 30 days 
prior to the expiration date of the initial license or renewal.
(b) The department may suspend or revoke the license of a facility for one or 
more of the following reasons: 
(1) the facility commits fraud, misrepresentation, or concealment of a material 
fact on any documents required to be submitted to the department or required to 
be maintained by the facility pursuant to the Act; 
(2) the facility or any of its employees materially alters any license issued by 
the department; 
(3) the facility or its employees commits an act which causes immediate jeopardy 
to the health and safety of a patient; 
(4) the facility is cited for deficiencies and fails to submit an acceptable 
plan of correction in accordance with this chapter;
(5) the facility has been cited for deficiencies and fails to timely comply with 
minimum standards for licensure within the dates designated in the plan of 
correction; 
(6) the facility or any of its employees has aided, abetted, or permitted the 
commission of an illegal act;
(7) the facility or any of its employees fails to comply with any provisions of 
the Act or this chapter; 
(8) the facility is not in compliance with minimum standards for licensure at 
least 60 days prior to the expiration date of the first annual or annual renewal 
license; 
(9) the facility fails to provide the required application or renewal 
information; 
(10) the facility fails to comply with an order of the commissioner of health or 
another enforcement procedure under the Act; 
(11) the facility discloses action as described in sec.139.23(c)(2)(D)(xii) and 
(xiii) of this title (relating to Application Procedures and Issuance of 
Licenses); or 
(12) the facility knowingly employs as the facility administrator or chief 
financial officer an individual who was convicted of a felony or misdemeanor 
listed in subsection (c) of this subsection. 
(c) The department may suspend or revoke an existing valid license or disqualify 
a person from receiving a license because of a person's conviction of a felony 
or misdemeanor if the crime directly relates to the duties and responsibilities 
of a licensed facility. 
(1) In determining whether a criminal conviction directly relates, the 
department shall consider the provisions of Texas Civil Statutes, Article 6252-
13c. 
(2) 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 facility: 
(A) a misdemeanor violation of the Act; 
(B) a conviction relating to deceptive business practices;
(C) a misdemeanor or felony offense involving moral turpitude;
(D) the misdemeanor of practicing any health-related profession without a 
required license; 
(E) a conviction under any federal or state law relating to drugs, dangerous 
drugs or controlled substances; 
(F) an offense under the Texas Penal Code involving a patient or patient of a 
health care facility or facility; 
(G) Texas Penal Code, Chapter 19 concerning criminal homicide;
(H) Texas Penal Code, Chapter 20 concerning kidnaping and false imprisonment; 
(I) Texas Penal Code, sec.21.11 concerning indecency with a child; 
(J) Texas Penal Code, sec.22.011 concerning sexual assault;
(K) Texas Penal Code, sec.22.02 concerning aggravated assault;
(L) Texas Penal Code, sec.22.04 concerning injury to a child, elderly or 
disabled individual; 
(M) Texas Penal Code, sec.22.041 concerning abandoning or endangering child; 
(N) Texas Penal Code, sec.22.08 concerning aiding suicide;
(O) Texas Penal Code, sec.25.031 concerning agreement to abduct from custody; 
(P) Texas Penal Code, sec.28.02 concerning arson; 
(Q) Texas Penal Code, sec.29.02 concerning robbery; 
(R) Texas Penal Code, sec.29.03 concerning aggravated robbery;
(S) 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; 
and 
(v) Title 4, concerning offenses of attempting or conspiring to commit any of 
the offenses in clauses (i) - (iv) of this subparagraph; and 
(T) other misdemeanors and felonies which indicate an inability or tendency for 
the person to be unable to own or operate a facility. 
(3) Upon a licensee's felony conviction, felony probation revocation, revocation 
of parole, or revocation of mandatory supervision, the license shall be revoked. 
(d) If the department proposes to deny, suspend, or revoke a license, the 
department shall notify the facility by certified mail, return receipt 
requested, or personal delivery of the reasons for the proposed action and offer 
the facility an opportunity for a hearing. 
(1) The facility must request a hearing within 20 calendar days of receipt of 
the notice. 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 Chapter 1 of this title (relating to the Texas Board of Health). 
(4) If the facility does not request a hearing in writing within 20 calendar 
days of receipt of the notice, the facility is deemed to have waived the 
opportunity for a hearing and the proposed action shall be taken. 
(5) If the facility fails to appear or be represented at the scheduled hearing, 
the facility has waived the right to a hearing and the proposed action shall be 
taken. 
(e) The department may suspend or revoke a license to be effective immediately 
when a situation(s) is identified that poses immediate jeopardy to the health 
and safety of person(s) at the facility. 
(1) The department shall immediately give the licensee adequate notice of the 
action taken, the legal grounds for the action, and the procedure governing 
appeal of the action. 
(2) The department shall set a hearing date not later than the 14th day after 
the effective date of the suspension or revocation.
(3) The department shall also notify the facility in writing of the emergency 
action, the legal grounds for the action, the effective date of the emergency 
action, the procedure governing appeal of the action, and the date set for the 
hearing. This notice shall be sent by certified mail, return receipt requested, 
or by personal delivery. The hearing shall be conducted pursuant to the 
Administrative Procedure Act, Texas Government Code, Chapter 2001, and the 
department's formal hearing procedures in Chapter 1 of this title (relating to 
the Texas Board of Health). 
(f) If a person violates the licensing requirements of the Act or rules adopted 
under the Act, the department may petition the district court for a temporary 
restraining order to restrain the person from continuing the violation or 
operating without a license. 
(g) If a person operates a facility without a license as required by this 
chapter and the Act, the person is liable for a civil penalty of not less than 
$1,000 nor more than $2,500 for each day of violation.
(h) If a facility has had enforcement action taken by the department against it, 
the facility, its owner(s), or its affiliate(s) may not apply for a facility 
license for one year following the effective date of the enforcement action. For 
purposes of this subsection only, the term "enforcement action" means license 
revocation, suspension, emergency suspension, or denial or injunctive action but 
does not include administrative penalties or civil penalties. If the department 
prevails in one enforcement action (e.g. injunctive action) against the facility 
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 enforcement action (e.g., the facility prevails), the prohibition in this 
paragraph does not apply. 
(i) If the department suspends a license, the suspension shall remain in effect 
until the department determines that the reason for suspension no longer exists. 
An authorized representative of the department shall conduct an on-site survey 
of the facility prior to making a determination. 
(1) During the time of suspension, the suspended license holder shall return the 
original license 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. 
(j) If the department revokes or does not renew a license and the one-year 
period described in subsection (h) of this section has passed, a person may 
reapply for a license 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. 
(k) Upon revocation or nonrenewal, a license holder shall return the license to 
the department. 
(l) After an on-site survey in which deficiencies were cited by the surveyor, a 
facility may surrender its license before expiration or allow its license to 
expire in lieu of the department proceeding with enforcement action. A facility 
may surrender before the expiration date by returning its original license to 
the department. If a facility surrenders or allows expiration of the license, 
the facility, its owner(s), and its affiliates may not reapply for a license for 
six months from the date of the surrender or expiration.

sec.139.33.Administrative Penalties.
(a) The department may assess an administrative penalty against a person who 
violates the Act or this chapter. 
(b) The penalty may not exceed $1,000 for each violation. Each day of a 
continuing violation constitutes a separate violation. 
(c) In determining the amount of an administrative penalty assessed under this 
section, the department shall consider: 
(1) the seriousness of the violation; 
(2) the history of previous violations; 
(3) the amount necessary to deter future violations;
(4) efforts made to correct the violation; and 
(5) any other matters that justice may require. 
(d) All proceedings for the assessment of an administrative penalty under this 
section are subject to Chapter 2001, Government Code.
(e) If, after investigation of a possible violation and the facts surrounding 
that possible violation, the department determines that a violation has 
occurred, the department shall give written notice of the violation to the 
person alleged to have committed the violation. The notice shall include: 
(1) a brief summary of the alleged violation; 
(2) a statement of the amount of the proposed penalty, based on the factors 
listed in subsection (c) of this section; and 
(3) a statement of the person's right to a hearing on the occurrence of the 
violation, the amount of the penalty, or both the occurrence of the violation 
and the amount of the penalty. 
(f) Not later than the 20th day after the date the notice required in subsection 
(e) of this section is received, the person notified may accept the 
determination of the department made under this section, including the 
recommended penalty, or make a written request for a hearing on that 
determination.
(g) If the person notified of the violation accepts the determination of the 
department, the commissioner or the commissioner's designee shall issue an order 
approving the determination and ordering the person to pay the recommended 
penalty. 
(h) If the person requests a hearing, the commissioner or the commissioner's 
designee shall: 
(1) set a hearing; 
(2) give written notice of the hearing to the person; and 
(3) designate a hearings examiner to conduct the hearing.
(i) The hearings examiner shall make findings of fact and conclusions of law and 
shall promptly issue to the commissioner a proposal for decision as to the 
occurrence of the violation and a recommendation as to the amount of the 
proposed penalty, if a penalty is determined to be warranted.
(j) Based on the findings of fact and conclusions of law and the recommendations 
of the hearings examiner, the commissioner by order may find that a violation 
has occurred and may assess a penalty or may find that no violation has 
occurred. 
(k) The commissioner or the commissioner's designee shall give notice of the 
commissioner's order under subsection (j) of this section to the person alleged 
to have committed the violation. The notice must include:
(1) separate statements of the findings of fact and conclusions of law; 
(2) the amount of any penalty assessed; and 
(3) a statement of the right of the person to judicial review of the 
commissioner's order. 
(l) Not later than the 30th day after the date the decision is final as provided 
by Chapter 2001, Government Code, the person shall: 
(1) pay the penalty in full; 
(2) pay the amount of the penalty and file a petition for judicial review 
contesting the occurrence of the violation, the amount of the penalty, or both 
the occurrence of the violation and the amount of the penalty; or 
(3) without paying the amount of the penalty, file a petition for judicial 
review contesting the occurrence of the violation, the amount of the penalty, or 
both the occurrence of the violation and the amount of the penalty. 
(m) Within the 30-day period, a person who acts under subsection (l)(3) of this 
section may: 
(1) stay enforcement of the penalty by: 
(A) paying the amount of the penalty to the court for placement in an escrow 
account; or 
(B) giving to the court a supersedeas bond that is approved by the court for the 
amount of the penalty and that is effective until all judicial review of the 
commissioner's order is final; or 
(2) request the court to stay enforcement of the penalty by: 
(A) filing with the court a sworn affidavit of the person stating that the 
person is financially unable to pay the amount of the penalty and is financially 
unable to give the supersedeas bond; and 
(B) giving a copy of the affidavit to the department by certified mail. 
(n) If the department receives a copy of an affidavit under subsection (m)(2) of 
this section, the department may file with the court, within five days after the 
date the copy is received, a contest to the affidavit. The court shall hold a 
hearing on the facts alleged in the affidavit as soon as practicable and shall 
stay the enforcement of the penalty on finding that the alleged facts are true. 
The person who files an affidavit has the burden of proving that the person is 
financially unable to pay the amount of the penalty and to give a supersedeas 
bond. 
(o) If the person does not pay the amount of the penalty and the enforcement of 
the penalty is not stayed, the department may refer the matter to the attorney 
general for collection of the amount of the penalty.
(p) Judicial review of the order of the commissioner: 
(1) is instituted by filing a petition as provided by the Texas Government Code, 
Chapter 2001, Subchapter G; and 
(2) is under the substantial evidence rule. 
(q) If the court sustains the occurrence of the violation, the court may uphold 
or reduce the amount of the penalty and order the person to pay the full or 
reduced amount of the penalty. If the court does not sustain the occurrence of 
the violation, the court shall order that no penalty is owed. 
(r) When the judgment of the court becomes final, the court shall proceed under 
this subsection. 
(1) If the person paid the amount of the penalty and if that amount is reduced 
or is not upheld by the court, the court shall order that the appropriate amount 
plus accrued interest be remitted to the person. The rate of the interest is the 
rate charged on loans to depository institutions by the New York Federal Reserve 
Bank, and the interest shall be paid for the period beginning on the date the 
penalty was paid and ending on the date the penalty is remitted. 
(2) If the person gave a supersedeas bond and if the amount of the penalty is 
not upheld by the court, the court shall order the release of the bond. 
(3) If the person gave a supersedeas bond and if the amount of the penalty is 
reduced, the court shall order the release of the bond after the person pays the 
amount. 
(s) A civil or administrative penalty collected under this section shall be 
deposited in the state treasury to the credit of the general revenue fund. 

sec.139.34.Recovery of Costs.
(a) The department may assess reasonable expenses and costs against a person in 
an administrative hearing if, as a result of the hearing, the person's license 
is denied, suspended, or revoked or if administrative penalties are assessed 
against the person. The person shall pay expenses and costs assessed under this 
subsection not later than the 30th day after the date a board order requiring 
the payment of expenses and costs is final. The department may refer the matter 
to the attorney general for collection of the expenses and costs. 
(b) If the attorney general brings an action against a person under sec.245.013 
or sec.245.015 of the Texas Abortion Facility Reporting and Licensing Act (Act), 
or an action to enforce an administrative penalty assessed under sec.139.33 of 
this title (relating to Administrative Penalties) and an injunction is granted 
against the person or the person is found liable for a civil or administrative 
penalty, the attorney general may recover, on behalf of the attorney general and 
the department, reasonable expenses and costs. 
(c) For purposes of this section, "reasonable expenses and costs" include 
expenses incurred by the department and the attorney general in the 
investigation, initiation, or prosecution of an action, including reasonable 
investigative costs, attorney's fees, witness fees, and deposition expenses.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on February 9, 1998.
TRD-9801843
Susan K. Steeg
General Counsel
Texas Department of Health
Earliest possible date of adoption: March 22, 1998
For further information, please call: (512) 458-7236

SUBCHAPTER D.Minimum Standards for Licensed Abortion Facilities
25 TAC sec.sec.139.41-139.60
The new sections are proposed under the Texas Abortion Facility Reporting and 
Licensing Act, Health and Safety Code, Chapter 245, which provides the Board of 
Health (board) with the authority to adopt rules governing the licensing and 
regulation of abortion facilities; 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. 
The new sections affect Health and Safety Code, Chapter 245. 

sec.139.41.Policy Development and Review.
(a) The licensee shall be responsible for the conduct of the abortion facility 
and shall assume full legal responsibility for developing, implementing, 
enforcing, and monitoring written policies governing the facility's total 
operation and for ensuring that these policies comply with the Act and the 
applicable provisions of this chapter and are administered so as to provide 
quality health care in a safe and professionally acceptable environment. These 
written polices shall include at a minimum the following: 
(1) administrative policies governing the administration of the facility, 
covering at a minimum: 
(A) personnel; 
(B) employee orientation, training, and evaluation; 
(C) employee and patient record system; 
(D) auditing system for monitoring state or federal funds;
(E) advertisements for the facility; 
(F) accuracy of public education information materials and activities in 
relation to abortion, birth control, and sexually-transmitted diseases; 
(G) patient education/information services and referral services;
(H) reporting requirements; and 
(I) procedures for the resolution of complaints regarding quality of care or 
services rendered by licensed health professionals and other members of the 
facility staff, including contract services or staff. The facility shall 
document the receipt and the disposition of the complaint. The investigation and 
documentation must be completed within 30 calendar days after the facility 
receives the complaint, unless the facility has and documents reasonable cause 
for a delay. 
(2) clinical policies governing medical and clinical practices and procedures of 
the facility, covering at a minimum: 
(A) the provision of medical and clinical services; 
(B) the provision of laboratory services; 
(C) examination of fetal tissue; 
(D) disposition of medical waste; 
(E) emergency services; 
(F) condition on discharge procedures; 
(G) clinical records; 
(H) reporting and filing requirements; and 
(I) monitoring postprocedure infection(s). 
(3) a policy to ensure compliance of the facility and all its employees and 
contractors in the facility with the Health and Safety Code, sec.161.091, 
concerning the prohibition of illegal remuneration for securing or soliciting 
patients or patronage; 
(4) a policy to ensure that the facility is in compliance with fire safety 
provisions as required by the local codes; and 
(5) policies on decontamination, disinfection, and sterilization, and storage of 
sterile supplies. 
(b) The licensee, in fulfilling its responsibility under subsection (a) of this 
section, shall review the facility's written policies and procedures 
periodically, but no less than once every two years; date to indicate time of 
last review; revise as necessary; and enforce. 

sec.139.42.Delegation of Authority and Organizational Structure.
(a) Delegation of authority. 
(1) The licensee shall appoint a medical consultant who shall be responsible 
for: 
(A) implementing and enforcing the clinical policies of the facility; and 
(B) supervising all medical services provided at the facility, such as medical, 
nursing, clinical, laboratory, and information/education services. 
(2) The licensee shall appoint an administrator who shall be responsible for 
implementing and supervising the administrative policies of the facility. 
(3) The licensee shall designate in writing a person who meets the 
qualifications of an administrator to act in the absence of the administrator. 
(b) Organizational structure. The licensee shall develop a written organization 
structure which shall be in a chart format or a narrative explanation that 
provides a description of the structure of an abortion facility and defines the 
lines of authority. 
(1) The written organizational structure shall include, at a minimum, the 
identification of the licensee, medical consultant, administrator, and clinical 
staff. 
(2) The written organizational structure shall clearly define the lines of 
authority and the delegation of responsibility for professional and non-
professional staff (including the medical consultant, the administrator, the 
medical and clinical staff, and ancillary staff). 

sec.139.43.Personnel Policies.
The licensee shall develop, implement and enforce policies which shall govern 
all personnel staffed by the facility using the following minimum criteria:
(1) job descriptions, including qualifications for all personnel providing 
direct or indirect patient care; 
(2) a requirement for orientation of all employees, volunteers, students and 
contractors to the policies and objectives of the facility and participation by 
all personnel in employee training specific to their job;
(3) job-related training for each position; 
(4) a requirement for an annual evaluation of employee performance; 
(5) in service and continuing education requirements;
(6) a requirement that all personnel providing direct patient care be currently 
certified in basic life support by the American Heart Association or the 
American Red Cross, or in accordance with their individual professional 
licensure requirements, and if required in their job description or job 
responsibilities; and 
(7) a requirement that all personnel having direct contact with patients 
(employed or contracting with the facility) sign a statement that they have 
read, understand, and will respect the rights of all patients as established in 
sec.139.51 of this title (relating to Patient Rights).

sec.139.44.Orientation, Training, and Demonstrated Competency.
(a) An abortion facility shall develop and implement a written orientation and 
training program to familiarize all employees (including office staff) with the 
facility's policies, philosophy, job responsibilities of all staff, and 
emergency procedures. 
(b) In implementing the orientation and training program, an abortion facility 
shall orient and train each employee to ensure, through demonstrated competency, 
that: 
(1) the employee understands his or her specific job description;
(2) the employee understands the facility's policy and procedure manual, 
including protocols and description of the roles and responsibilities of all 
personnel; 
(3) the employee understands, at a minimum but not limited to, the following: 
(A) coordination and treatment of patient care; 
(B) sterilization and infection control policies; 
(C) patient education/information; 
(D) informed consent policies; 
(E) abortion techniques provided at that facility; 
(F) care of the patient perioperatively; 
(G) possible complications of the abortion procedure; and
(H) prevention of infectious diseases. 
(c) The facility shall ensure that staff responsible for sterilization of 
critical surgical instruments are trained by the facility to meet the 
requirements of sec.139.49(d) of this title (relating to Infection Control 
Standards) and demonstrate competency in performing the sterilization procedures 
at the facility. 
(d) The facility shall ensure that all staff are aware of the reporting 
requirements for child abuse or neglect under Family Code, sec.261.101; and 
reporting requirements for family violence under Family Code, sec.73.02 and 
sec.73.03. 
(e) The facility shall document in each employee's personnel record evidence of 
all training and orientation received. 

sec.139.45.Personnel Records.
An individual personnel record shall be maintained on each person employed by 
the abortion facility which shall include, but not be limited to, the following: 
(1) current job description for the employee, which is reviewed and revised as 
needed; 
(2) verification of current license and certification of personnel; 
(3) tests results (e.g. Mycobacterium tuberculosis, hepatitis B virus);
(4) documentation of the education, training, and experience of the employee, in 
addition to a copy or verification of the employee's current license or 
certification credentials, or both; and
(5) documentation of the employee's orientation, in-service and other 
educational programs of the abortion facility (training), and employee 
evaluation. 

sec.139.46.Abortion Facility Staffing Requirements and Qualifications.
An abortion facility shall have an adequate number of personnel qualified under 
this section available to provide direct patient care as needed by all patients; 
and administrative and non-clinical services needed to maintain the operation of 
the facility in accordance with the provisions of the Act and this chapter. 
(1) Medical consultant. The medical consultant shall be a physician. 
(2) Administrator. 
(A) The administrator shall be at least 18 years of age and shall meet at least 
one of the following qualifications: 
(i) be a licensed health care professional; 
(ii) have a baccalaureate degree, a post graduate degree, or a professional 
degree and one year administrative experience in a health care or health-related 
field; or 
(iii) have a minimum of two years of administrative experience in a health care 
or health-related facility. 
(B) The administrator shall not have been employed in the last year as an 
administrator with another abortion facility or health-related facility at the 
time the facility was cited for violations of a licensing law or rule which 
resulted in enforcement action taken against the abortion facility or health-
related facility. For purposes of this subparagraph only, the term "enforcement 
action" means license revocation, suspension, emergency suspension, or denial or 
injunctive action but does not include administrative penalties or civil 
penalties. If the department prevails in one enforcement action (e.g. injunctive 
action) against the facility 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 enforcement action (e.g., the facility 
prevails), the prohibition in this paragraph does not apply. 
(C) The administrator shall not have been convicted of a felony or misdemeanor 
listed in sec.139.32 of this title (relating to License Denial, Suspension, and 
Revocation). 
(3) Direct patient care staff. 
(A) Medical staff. The medical staff shall include a physician and may include 
physician extenders. 
(B) Nursing staff. The nursing staff shall include a registered nurse(s) or a 
licensed vocational nurse(s). 
(C) Education and information staff. Staff providing education and information 
services at the facility shall be a person(s) who is trained to provide 
information on abortion procedures, alternatives, consent form, and family 
planning services, meets at least one of the following additional 
qualifications: 
(i) has one year experience in a health care facility; 
(ii) has a baccalaureate degree in a counseling related field; or 
(iii) is a licensed professional mental health practitioner who provides 
therapeutic intervention. 
(D) Laboratory staff. The laboratory staff shall include a person(s) who: 
(i) is trained to provide the laboratory services for the facility as determined 
by the medical consultant; and 
(ii) has a high school education or general equivalency diploma (GED) and 
specific training as prescribed by the medical consultant. 
(4) Ancillary staff. Ancillary staff may include professional or nonprofessional 
staff who shall have training and experience to perform duties as prescribed by 
the administrator and the medical consultant as needed. 
(5) Anesthesia staff. Levels of sedation are divided into three levels and 
minimum staffing is required at each level of sedation as established in 
sec.139.59 of this title (relating to Anesthesia Services).

sec.139.47.Facility Administration.
(a) The administrator shall be responsible for implementing and supervising the 
administrative policies of the facility. 
(b) The administrator shall: 
(1) employ a qualified staff adequate in number to: 
(A) provide the medical and clinical services; 
(B) provide the non-clinical services; and 
(C) maintain the abortion facility; 
(2) ensure that employment of personnel is without regard to age, race, 
religion, or national origin; 
(3) ensure that all medical and clinical personnel hold current Texas licenses 
to practice their respective disciplines/professions, if applicable; 
(4) develop and make available to all staff and the department, a policy and 
procedure manual including protocols and description of the roles and 
responsibilities of all personnel; 
(5) ensure that assignment of duties and functions to each employee are 
commensurate with his/her licensure, certification, and experience and 
competence; 
(6) ensure that staff receive training, education, and orientation to their 
specific job description, facility personnel policies, philosophy, and emergency 
procedures in accordance with this section;
(7) schedule employee evaluations; 
(8) maintain employee and patient records; 
(9) ensure the accuracy of public education information materials and activities 
in relation to abortion, birth control, and sexually-transmitted diseases. The 
department shall be the primary resource for human immunodeficiency virus (HIV) 
education, prevention, risk reduction materials, policies, and information. 
Educational materials may be obtained by writing or calling the Texas Department 
of Health Warehouse, Literature and Forms, 1100 West 49th Street, Austin, Texas 
78756, (512) 458-7761; 
(10) implement an effective budgeting, accounting, and auditing system for 
receipt of state or federal funds; 
(11) ensure that all advertisements for the facility include the unique 
identifying license number assigned by the department in accordance with 
sec.139.7 of this title (relating to Unique Identifying Number; Disclosure in 
Advertisement); 
(12) ensure that a woman, at the time of initial on-site consultation, receives 
the information required to be disclosed under sec.139.50 of this title 
(relating to Disclosure Requirements); and 
(13) ensure that the reporting requirements of sec.139.5 of this title (relating 
to Annual Reporting Requirements) are performed.
(c) Staffing schedules, time-worked schedules, and on-call schedules shall be 
retained and available to the facility within two hours. All records must be 
maintained for two years. 
(d) An abortion facility shall report issues and complaints regarding conduct or 
actions of all licensed health care professional(s) to the appropriate licensing 
board. If the patient is unsatisfied with the facility's findings, the facility 
shall provide the complainant with the name, address, and telephone number of 
the appropriate licensing board. The facility shall document the review and 
action taken by the facility.

sec.139.48.Physical and Environmental Requirements.
The physical and environmental requirements for an abortion facility are as 
follows.
(1) A facility must: 
(A) have a safe and sanitary environment, properly constructed, equipped, and 
maintained to protect the health and safety of patients and staff at all times; 
(B) equip each procedure room so that procedures can be performed in a manner 
that assures the physical safety of all individuals in the area;
(C) have a separate recovery room; 
(D) have a written protocol for emergency evacuation for fire and other 
disasters; 
(E) store hazardous cleaning solutions and compounds in a secure manner and 
label substances; 
(F) have the capacity to provide patients with liquids. The facility may provide 
commercially packaged food to patients in individual servings. If other food is 
provided by the facility, it will be subject to the requirements of 
sec.sec.229.161 - 229.171 of this title (relating to Food Service Sanitation); 
(G) provide clean hand washing facilities for patients and staff including 
running water, and soap; 
(H) have a functioning sink and toilet; and 
(I) have equipment available to sterilize instruments, equipment, and supplies 
in accordance with sec.139.49(d) of this title (relating to Infection Control 
Standards) before use in the facility. 
(2) The equipment for vacuum aspiration shall be electrically safe and designed 
to prevent reverse pump action. 
(3) Projects involving alterations of and additions to existing buildings shall 
be programmed and phased so that on-site construction will minimize disruptions 
of existing functions. Access, exitways, and fire protection shall be maintained 
so that the safety of the occupants will not be jeopardized during construction. 

sec.139.49.Infection Control Standards.
(a) Written policies. An abortion facility shall develop, implement, and enforce 
infection control policies and procedures to minimize the transmission of 
postprocedure infections. 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), 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 SP. 
(1) Universal/standard precautions. 
(A) An abortion facility 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 as 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 facilities, regardless of their diagnosis or presumed 
infection status. 
(I) Standard 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 
facilities. 
(B) An abortion facility 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. An abortion facility shall 
adopt, implement, and enforce a written policy to ensure compliance of the 
abortion facility and all of the health care workers within the facility 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 training. An abortion facility 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 and training may include formal education courses 
or in-house training or workshops provided by the facility. The course work and 
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/Acquired Immunodeficiency Disease (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 SP 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) An abortion facility shall develop, implement, and enforce written policies 
and procedures on cleaning the procedure room(s). 
(2) An abortion facility shall develop, implement, and enforce written policies 
and procedures for the handling, processing, storing, and transporting of clean 
and dirty laundry. 
(3) An abortion facility may provide cleaning and laundry services directly or 
by contract in accordance with Occupational Safety and Health Association's 
standards 29 Code of Federal Regulations, Subpart Z. Bloodborne Pathogens. 
(d) Policies and procedures for decontamination, disinfection, sterilization, 
and storage of sterile supplies. An abortion facility 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, or experience. 
(2) Quantity of sterile surgical instruments. The facility shall ensure that 
surgical instruments are sufficient in number to permit sterilization of the 
instrument(s) used for each procedure and adequate to perform conventional 
cervical dilatation and curettage. 
(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 box locks shall be clean and free from buildup of soap, detergent, 
dried blood, or tissue. 
(ii) There shall be no evident cracks or fissures in the box locks, and the 
hinges shall work freely. 
(iii) Ratchets shall hold and be routinely tested. 
(iv) 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. Semicritical items may include respiratory therapy equipment, 
anesthesia equipment, bronchoscopes, and thermometers.
(ii) High-level disinfection shall be used for semicritical items. 
(C) Noncritical items. 
(i) Noncritical items include items that come in contact with intact skin. 
(ii) Intermediate-level or low-level disinfection shall be used for noncritical 
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. An abortion facility 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 facility shall have a sink for hand washing. This sink shall not be used 
for cleaning instruments or disposal of liquid waste. 
(ii) A facility shall have a separate sink for cleaning instruments and disposal 
of liquid waste. Hand washing shall 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 manufacturers' 
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. 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 facility shall ensure proper storage and handling of items in 
a manner that does not 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 
to the facility within two hours of request by the department. 

sec.139.50.Disclosure Requirements.
An abortion facility shall provide to a woman at the time of initial onsite 
consultation with the facility: 
(1) a written statement indicating the number of a toll-free telephone line 
which is maintained by the department to provide specific information relating 
to licensed abortion facilities in Texas. The statement shall be in accordance 
with sec.139.6 of this title (relating to Public Information; Toll-free 
Telephone Number); and 
(2) a written statement identifying the department as the responsible agency for 
facility complaint investigations. The statement shall inform persons to 
register complaints with the Director, Health Facility Compliance, Texas 
Department of Health, 1100 West 49th Street, Austin, Texas 78756. Complaints 
must be registered with the department in writing. A complainant must provide 
his/her name. All complaints shall be confidential. 

sec.139.51.Patient Rights.
The licensee shall ensure that all patients: 
(1) are cared for in a manner and in an environment that enhances each patient's 
dignity and respect in full recognition of her individuality;
(2) receive care in a manner that maintains and enhances her self-esteem and 
self-worth; 
(3) be allowed to make her own choice and self-determination;
(4) are ensured the right to personal privacy and confidentiality of her choices 
and decisions; 
(5) have access to quality care and treatment consistent with available 
resources and generally accepted standards regardless of race, creed, and 
national origin; and 
(6) are allowed to ask additional questions after giving consent and to withdraw 
consent prior to the start of the procedure. 

sec.139.52.Patient Education/Information Services.
(a) An abortion facility shall provide patient education/information services to 
each patient to: 
(1) establish that the patient understands the nature and consequences of the 
procedure and recognizes alternatives to abortions (with a physician, physician 
extender, registered nurse, or a licensed vocational nurse available to answer 
questions if needed); 
(2) prepare the patient for surgery in a manner that facilitates her safety and 
comfort; and 
(3) assist the patient in reaching a decision about the method of post-procedure 
birth control she will use, if any, and respect her choices. 
(b) An abortion facility shall, if needed, refer a patient to a licensed mental 
health practitioner who provides therapeutic intervention.

sec.139.53.Medical and Clinical Services.
(a) The medical consultant shall be responsible for implementing and supervising 
the medical and clinical policies of the facility. 
(b) All medical and clinical services of the facility, with the exception of the 
abortion procedure, must be provided under the direction of a physician or 
registered nurse who assumes responsibility for the clinical employees' 
performance in the facility. 
(c) An abortion facility must ensure that a surgical consent form is signed by 
the patient prior to the procedure being started, and that the patient 
understands the nature and consequences of the procedure and that the patient 
recognizes the alternatives to abortion. Informed consent shall be in accordance 
with rules adopted by the Texas Medical Disclosure Panel under sec.601.2 of this 
title (relating to Procedures Requiring Full Disclosure - List A) and sec.601.4 
of this title (relating to Disclosure and Consent Form). 
(d) An abortion facility shall ensure that the attending physician has obtained 
and documented a preoperative history, physical exam, and laboratory studies, 
including verification of pregnancy. 
(e) An abortion facility shall ensure that: 
(1) the attending physician examines each patient immediately prior to surgery 
to evaluate the risk to the procedure; and 
(2) the physician or certified registered nurse anesthetist (CRNA) administering 
the anesthetic agent(s) examines the patient immediately prior to surgery to 
evaluate the risk of anesthesia. 
(f) The administration of anesthesia must be in accordance with sec.139.59 of 
this title (relating to Anesthesia Services). 
(g) An abortion shall be performed only by a physician. 
(h) A physician, physician extender, registered nurse, or licensed vocational 
nurse must be in the facility whenever there is a patient in the procedure room 
or recovery room. While a patient is in the procedure room or recovery room she 
shall not be left unattended. 
(i) The recovery room(s) at the facility must be supervised by a physician, 
physician extender, or registered nurse. This supervisor must be available for 
recovery room staff within a recommended 10 minutes with a maximum required 15 
minutes while any patient is in the recovery room. 
(j) A physician shall be available for the facility while any patient is in the 
recovery room within a recommended 10 minutes and a maximum required 15 minutes. 
(k) The facility must ensure that a patient is fully reactive and her vital 
signs are stable before discharging the patient from the facility upon written 
order by the attending physician. 
(l) All fetal tissue must be examined grossly at the time of the procedure. In 
the absence of visible fetal parts or placenta, the tissue may be examined by 
magnification for the detection of villi. If this examination is inconclusive, 
the tissue shall be sent to a pathology lab. The results of the tissue 
examination shall be recorded in the patient's clinical record.
(m) A facility shall meet the 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).

sec.139.54.Health Care Services.
(a) Definition. For the purposes of this section, the term "health care 
professional" includes: 
(1) a physician; 
(2) physician extenders; 
(3) a registered nurse; 
(4) a licensed vocational nurse; or 
(5) licensed mental health practitioner. 
(b) Nursing services. 
(1) An abortion facility 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. 
(2) An abortion facility must ensure that licensed vocational nurses (LVNs) have 
been instructed and have demonstrated competence in the technique for 
administering intravenous fluids or medications and extracting blood for 
laboratory tests if allowing LVNs to perform such tasks. 
(3) An abortion facility may allow an LVN, whose formal training does not 
include venipuncture procedures, to perform such procedure if a physician, 
physician extender, CRNA, or registered nurse (RN) documents that the LVN (by 
name) has received instruction in the performance of venipuncture and is 
qualified to perform such procedure. 
(c) Student health care professionals. If the facility has a contract or 
agreement with an accredited school of health care to use their facility for a 
portion of the students' clinical experience, those students may provide care 
under the following conditions. 
(1) Students may be used in facilities, provided the instructor gives class 
supervision and assumes responsibility for all student activities occurring 
within the facility. If the student is licensed, such as a licensed vocational 
nurse attending a registered nurse program for licensure as a registered nurse, 
the facility shall ensure that the administration of any medication(s) is within 
the student's licensed scope of practice. 
(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 is on the premises and directly supervises the administration 
of medication by an unlicensed student and the administration of such medication 
is within the instructor's licensed scope of practice.
(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 facility. 

sec.139.55.Clinical Records.
(a) An abortion facility shall maintain a daily patient roster of all patients 
receiving abortion services. This daily patient roster shall be retained for a 
period of five years.
(b) An abortion facility shall establish and maintain a clinical record for each 
patient. An abortion facility shall maintain the record to assure that the care 
and services provided to each patient is completely and accurately documented, 
readily, and systematically organized to facilitate the compilation and 
retrieval of information. Information required for the annual abortion report 
shall be readily retrievable from the clinical record.
(1) The facility shall have written procedures which are adopted, implemented, 
and enforced regarding the removal of records and the release of information. A 
facility shall not release any portion of a patient record to anyone other than 
the patient except as allowed by law. 
(2) All information regarding the care and services shall be centralized in the 
record and be protected against loss or damage and unofficial use. 
(3) The facility shall establish an area for patient record storage. The patient 
records must be retrievable within two hours by the facility. 
(4) The facility shall ensure that each record is treated with confidentiality. 
(5) 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 subsection (d) 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. 
(6) A facility shall maintain clinical records in their original state. Each 
entry shall be accurate, dated with the date of entry, and signed 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. 
(7) Inactive patient records may be preserved and stored on microfilm, optical 
disc or other electronic means. Security shall be maintained and the record must 
be retrievable within two hours by the facility. 
(c) The clinical record shall contain: 
(1) patient identifying information; 
(2) name of physician; 
(3) diagnosis; 
(4) history and physical; 
(5) laboratory reports; 
(6) tissue reports; 
(7) allergies/drug reactions; 
(8) physician's orders; 
(9) progress notes to include at a minimum, notations of vital signs; signs and 
symptoms; response to medication(s) and treatment(s); and any changes in 
physical or emotional condition(s). These notations shall be written, dated, and 
signed on the day patient care is delivered by the individual(s) delivering 
patient care; 
(10) education/information and referral notes; 
(11) signed patient consent form; 
(12) medication administration records. Notations of all pharmaceutical agents 
shall include the time and date administered, the name of the individual 
administering the agent, and the signature of the person making the notation if 
different than the individual administering the agent;
(13) condition on discharge; 
(14) the medical examination or written referral, if obtained; and 
(15) physician documentation of viability or nonviability of fetus(es) at a 
gestational age greater than 26 weeks. 
(d) An abortion facility shall retain clinical records for adults for five years 
from the time of discharge and clinical records for minors for five years past 
the age the patient reaches majority. 
(e) An abortion facility may not destroy patient records that relate to any 
matter that is involved in litigation if the facility knows the litigation has 
not been finally resolved.
(f) If an abortion facility closes, there shall be an arrangement for the 
preservation of inactive records to ensure compliance with this section. The 
facility shall send the department written notification of the reason for 
closure, the location of the patient records and the name and address of the 
patient record custodian. If a facility closes with an active patient roster, a 
copy of the active patient record shall be transferred with the patient to the 
receiving facility or other health care facility in order to assure continuity 
of care and services to the patient. 

sec.139.56.Emergency Services.
(a) The facility must have a readily accessible written protocol for managing 
medical emergencies and the transfer of patients requiring further emergency 
care to a hospital. The facility shall ensure that the physicians who practice 
at the facility have admitting privileges or have a working arrangement with a 
physician(s) who has admitting privileges at a local hospital in order to ensure 
the necessary back-up for medical complications. 
(b) The facility must have the necessary equipment and personnel for 
cardiopulmonary resuscitation as described in sec.139.59 of this title (relating 
to Anesthesia Services). 
(c) Personnel providing direct patient care shall be currently certified in 
basic life support by the American Heart Association or the American Red Cross, 
or in accordance with their individual professional licensure requirements, and 
if required in their job description or job responsibilities. 

sec.139.57.Discharge and Follow-up Referrals.
(a) An abortion facility shall develop and implement written discharge 
instructions which shall include: 
(1) a list of complications (developed by the facility in conjunction with a 
physician who practices in the facility) that warrant the patient contacting the 
facility, which shall include, but not be limited to:
(A) pain; 
(B) temperature; and 
(C) bleeding; 
(2) a statement of the facility's plan to respond to the patient in the event 
the patient experiences any of the complications listed in the discharge 
instructions to include: 
(A) the mechanism by which the patient may contact the facility on a 24 hour 
basis by telephone answering machine or service or by direct contact with an 
individual; 
(B) the facility's requirement that every reasonable effort be made and 
documented to respond to the patient within 30 minutes of the patient's call; 
(C) assurance that the responding individual shall be a physician, physician 
extender, registered nurse, or licensed vocational nurse; and 
(D) information that the patient may also contact the emergency medical service 
or present for care at the emergency room of a hospital in addition to 
contacting the facility; and 
(3) information concerning the need for a post-abortion examination. 
(b) A facility shall provide a patient with a copy of the written discharge 
instructions described in subsection (a) of this section.
(c) The facility shall develop and implement written policies and procedures 
for: 
(1) examination or referral of all patients who report complications, as 
identified in the list required by subsection (a)(1) of this section, to the 
facility after an abortion procedure. The written policy and procedure shall 
require: 
(A) the facility to maintain a written system of documentation of patients who 
report post-abortion complications within 14 days of the procedure date; 
(B) documentation of the facility's action following a patient's reporting of 
post-abortion complications to be placed in the patient's record; and 
(C) the patients' records to be maintained for five years; and 
(2) periodic review of the record keeping system for post-abortion complications 
to identify problems and potential problems and to make changes in order to 
resolve the problems.

sec.139.58.Reporting Requirements.
An abortion facility shall report a women's death if it results from a 
complication(s) of an abortion. The report shall be made by phone or fax within 
one business day after the incident to the director of Health Facility 
Licensing, Texas Department of Health, 1100 West 49th Street, Austin, Texas 
78756, Telephone (512) 834-6646, or Fax (512) 834-4514 or (512) 834-6714.

sec.139.59.Anesthesia Services.
An abortion facility may provide various degrees of sedation (anesthesia) as 
defined in the following paragraphs. The patient may progress spontaneously from 
one degree to another, based on the medications administered, route, and 
dosages. The determination of patient monitoring and staffing requirements 
should be based on the provisions set out in this section and the patient's 
acuity and the potential response of the patient to the procedure.
(1) Light sedation and local anesthetic. 
(A) Definition. 
(i) Light sedation - A level of sedation which is accomplished through the 
administration of oral medication(s) for the reduction of anxiety as prescribed 
by a physician or a physician extender. In this stage the following shall be 
present: 
(I) normal respirations; 
(II) normal eye movements; and 
(III) intact protective reflexes. 
(ii) Local anesthetic - A drug which is injected in or about the cervix for the 
purpose of blocking painful sensation. 
(B) Minimum staffing. Staffing during light sedation and local anesthetic shall 
include the physician and sufficient support staff to perform the procedure. 
(C) Minimum training and knowledge. All staff members managing the care of a 
patient under light sedation shall be certified in basic life support (BLS) with 
bi-annual recertification. 
(D) Clinical and equipment standards for licensed facilities administering light 
sedation and/or local anesthetic. The facility must have at a minimum, the 
following emergency equipment for local anesthetic and/or light sedation 
management: 
(i) oxygen; 
(ii) mechanical ventilatory assistance equipment that includes airways and 
manual breathing bag; 
(iii) emergency drugs as specified by the physician(s) on staff; and 
(iv) functioning oral suction machine apparatus. 
(2) Moderate sedation (also called intravenous sedation or conscious sedation). 
(A) Definition. Moderate sedation is a moderate level of sedation which is 
accomplished through a medically controlled state of depressed consciousness 
that: 
(i) allows protective reflexes to be maintained; 
(ii) retains the patient's ability to maintain a patent airway independently and 
continuously; and 
(iii) permits appropriate response by the patient to physical stimulation or 
verbal command, for example, "open your eyes". 
(B) Minimum staffing. Staffing during moderate sedation shall always include a 
minimum of: 
(i) a physician, trained and experienced in the use of moderate sedation, air-
way management and resuscitation to manage the care of the patient; and 
(ii) one trained, competent clinic staff person to monitor the patient at all 
times in the procedure and recovery room. 
(C) Managing the care of the patient. The medical or nursing staff managing the 
anesthesia care of the patient under moderate sedation shall have no other 
responsibilities that would leave the patient unattended or compromise 
continuous monitoring. 
(D) Minimum training and knowledge. 
(i) The medical or nursing staff managing the care of a patient receiving 
moderate sedation shall at a minimum have the following: 
(I) training in BLS with bi-annual recertification; 
(II) annual training in the recognition of the cardiovascular and respiratory 
side effects of sedatives, as well as the variability of patient response; 
(III) current knowledge of emergency supplies and equipment inventory and their 
use. 
(ii) The physician, physician extender, or nurse administering the medications 
shall know the pharmacology of the medications administered.
(E) Procedure room requirements. 
(i) The facility shall have the capability of monitoring blood pressure and 
oxygen saturation as well as a functioning oral suction machine apparatus. 
(ii) All patients receiving moderate sedation shall have a functional 
intravenous access in place. 
(iii) Emergency supplies and equipment shall be readily accessible and shall 
include the necessary drugs and equipment to resuscitate a non-breathing and 
unconscious patient. There shall be documentation that all emergency equipment 
and drugs are checked and maintained on a scheduled basis. 
(3) Deep sedation. 
(A) Definition. Deep sedation is a medically controlled state of depressed 
consciousness or unconsciousness from which the patient is not easily aroused. 
Deep sedation results in a partial or complete loss of protective reflexes, and 
includes the inability to maintain a patent airway independently and respond 
purposefully to physical stimulation or verbal command. 
(B) Standards for administering deep sedation. 
(i) An abortion facility which provides deep sedation shall provide professional 
staff; equipment for the administration (of deep sedation); a post anesthesia 
care area; monitoring equipment for procedure room and post anesthesia recovery 
area sufficient for the provision of deep sedation in accordance with the 
following American Society for Anesthesiologists standards and guidelines: 
(I) Practice Guidelines for Sedation and Analgesia by Non-Anesthesiologists, 
dated February 1996; 
(II) Standards, Guidelines, and Statements, dated October 1996, specifically: 
(-a-) Basic Anesthetic Monitoring, dated October 21, 1986, as amended October 
23, 1996; and 
(-b-) Standards for Post-Anesthesia Care, dated October 12, 1988, as amended 
October 19, 1994. 
(ii) 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 
writing the American Society of the Anesthesiologists, 520 North West Hwy., Park 
Ridge, Illinois 60068-2573; or by telephone at (847) 825-5586. 
(iii) A physician or a certified registered nurse anesthetist (CRNA) shall 
administer deep sedation. The physician administering deep sedation may not be 
the physician performing the procedure. A second physician or CRNA shall 
administer and monitor deep sedation. 

sec.139.60.Other State and Federal Compliance Requirements.
(a) The facility must be in compliance with all state and federal laws 
pertaining to handling of drugs. 
(b) An abortion facility 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 
facilities 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. 
(c) An abortion facility shall ensure that its physicians comply with the 
Medical Practice Act, Texas Civil Statutes, Article 4495b, while functioning in 
his or her capacity at or for the facility. 
(d) An abortion facility utilizing the services of a physician assistant(s) 
shall ensure that its physicians assistants 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 facility. 
(e) An abortion facility utilizing the services of a registered nurse shall 
ensure that its registered nurses 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 facility. 
(f) An abortion facility utilizing the services of a licensed vocational 
nurse(s) shall ensure that its 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 facility.
(g) An abortion facility that provides pharmacy services shall obtain a license 
as a pharmacy if required by the Texas Pharmacy Act, Texas Civil Statutes, 
Article 4542a-1. 
(h) An abortion facility shall comply with the following federal Occupation 
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).
(i) An abortion facility 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.
(j) An abortion facility 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 proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on February 9, 1998.
TRD-9801844
Susan K. Steeg
General Counsel
Texas Department of Health
Earliest possible date of adoption: March 22, 1998
For further information, please call: (512) 458-7236

CHAPTER 289.Radiation Control
The Texas Department of Health (department) proposes the repeal of sec.289.114 
and proposes new sec.289.203, concerning requirements for notices, instructions, 
reports to workers, and inspection protocol. The section proposed for repeal 
adopts by reference Part 22, titled "Notices, Instructions, Reports to Workers; 
Inspections" of the Texas Regulations for Control of Radiation. The proposed new 
section incorporates language from Part 22 that has been rewritten in Texas 
Register format and includes addition and revision of several subsections of the 
section. The repeal and new section are part of the renumbering phase in the 
process of rewriting the department's radiation rules in the Texas Register 
format. The new section reflects the renumbering.
The new section requires licensees and registrants to provide radiation workers 
with appropriate notices, instructions, and options available to such 
individuals regarding department inspections. The requirements for notifying 
workers of exposure records are being changed to an annual interval to make them 
consistent with the existing requirements concerning annual exposure limits. 
References to other sections of this chapter are clarified to reflect the type-
name="italic">Texas Register format. Other minor grammatical changes are made to 
the section for clarification.
Mrs. Ruth E. McBurney, C.H.P., Director, Division of Licensing, Registration and 
Standards, Bureau of Radiation Control, has determined that for each year of the 
first five-year period the sections will be in effect, there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the sections as proposed. 
Mrs. McBurney also has determined that for each year of the first five years the 
proposed sections will be in effect, the public benefit anticipated as a result 
of enforcing the sections will be to ensure that a radiation worker's exposure 
information is provided to the worker in a manner consistent with the annual 
radiation dose limits. There will be no effect on small businesses. There are no 
anticipated economic costs to persons who are required to comply with the 
sections as proposed. There is no anticipated impact on local employment.
Comments on the proposal may be presented to Ruth E. McBurney, C.H.P., Director, 
Division of Licensing, Registration and Standards, Bureau of Radiation Control, 
Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3189, 
Telephone (512) 834-6688 or electronic mail at rmcburne@brc1.tdh.state.tx.us. 
Public comments will be accepted for 30 days following publication of this 
proposal in the Texas Register. In addition, a public meeting to accept oral 
comments will be held at 10:00 a.m., Friday, March 6, 1998, in Conference Room 
N218, Texas Department of Health, Bureau of Radiation Control, located at the 
Exchange Building, 8407 Wall Street, Austin, Texas. 

Texas Regulations for Control of Radiation
25 TAC sec.289.114
(Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas Department 
of Health or in the Texas Register office, Room 245, James Earl Rudder Building, 
1019 Brazos Street, Austin.)
The repeal is proposed under the Health and Safety Code, Chapter 401, which 
provides the Texas Board of Health (board) with authority to adopt rules and 
guidelines relating to the control of radiation; and sec.12.001, which 
authorizes the board to adopt rules for the performance of every duty imposed by 
law on the board, the department and the commissioner of health. The repeal 
affects Health and Safety Code, Chapter 401. 

sec.289.114.Notices, Instructions, and Reports to Workers; Inspections.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on February 9, 1998.
TRD-9801764
Susan K. Steeg
General Counsel
Texas Department of Health
Earliest possible date of adoption: March 22, 1998
For further information, please call: (512) 458-7236

General
25 TAC sec.289.203
The new section is proposed under the Health and Safety Code, Chapter 401, which 
provides the Texas Board of Health (board) with authority to adopt rules and 
guidelines relating to the control of radiation; and sec.12.001, which 
authorizes the board to adopt rules for the performance of every duty imposed by 
law on the board, the department and the commissioner of health. The new section 
affects Health and Safety Code, Chapter 401. 

sec.289.203.Notices, Instructions, and Reports to Workers; Inspections.
(a) Scope and purpose. This section establishes requirements for notices, 
instructions, and reports by licensees or registrants to individuals engaged in 
activities under a license or certificate of registration, and options available 
to such individuals in connection with agency inspections of licensees or 
registrants to ascertain compliance with the provisions of the Texas Radiation 
Control Act (Act) and rules, orders, licenses, and certificates of registration 
issued thereunder regarding radiological working conditions. The requirements in 
this section apply to all persons who receive, possess, use, or transfer sources 
of radiation licensed by or registered with the agency in accordance with this 
chapter. 
(b) Posting of notices to workers. 
(1) Each licensee or registrant shall post current copies of the following 
documents: 
(A) the requirements in this section and in section sec.289.202 of this title 
(relating to Standards for Protection Against Radiation); 
(B) the license, certificate of registration, conditions or documents 
incorporated into the license or certificate of registration by reference, and 
amendments thereto; 
(C) the operating procedures applicable to work under the license or certificate 
of registration; and 
(D) any notice of violation involving radiological working conditions, or order 
issued in accordance with section sec.289.112 of this title (relating to Hearing 
and Enforcement Procedures) and sec.289.201 of this title (relating to General 
Provisions). 
(2) If posting of a document specified in paragraph (1) of this subsection is 
not practicable, the licensee or registrant shall post a notice that describes 
the document and states where it may be examined.
(3) Bureau of Radiation Control (BRC) Form 203-1, "Notice to Employees," as 
contained in subsection (i) of this section, or an equivalent document 
containing at least the same wording as BRC Form 203-1, shall be posted by each 
licensee or registrant as required by this section. 
(4) Documents, notices, or forms posted in accordance with this subsection 
shall: 
(A) appear in a sufficient number of places to permit individuals engaged in 
work under the license or certificate of registration to observe them on the way 
to or from any particular work location to which the document applies; 
(B) shall be conspicuous; and 
(C) shall be replaced if defaced or altered. 
(c) Instructions to workers. 
(1) All individuals likely to receive in a year an occupational dose in excess 
of 100 millirem (1 millisievert) shall be: 
(A) kept informed of the storage, transfer, or use of sources of radiation in 
the licensee's or registrant's workplace; 
(B) instructed in the health protection problems associated with exposure to 
sources of radiation, in precautions or procedures to minimize exposure, and in 
the purposes and functions of protective devices employed;
(C) instructed in, and instructed to observe, to the extent within the worker's 
control, the applicable provisions of agency requirements, licenses, and 
certificates of registration, for the protection of personnel from exposures to 
sources or radiation occurring in such areas; 
(D) instructed of their responsibility to report promptly to the licensee or 
registrant any condition that may constitute, lead to, or cause a violation of 
agency requirements, license conditions, or certificate of registration 
conditions, or unnecessary exposure to sources of radiation;
(E) instructed in the appropriate response to warnings made in the event of any 
unusual occurrence or malfunction that may involve exposure to sources of 
radiation; and 
(F) advised as to the radiation exposure reports that workers may request in 
accordance with subsection (d) of this section. 
(2) The extent of these instructions shall be commensurate with potential 
radiological health protection problems associated with the source(s) of 
radiation in the workplace. 
(d) Notifications and reports to individuals. 
(1) Radiation exposure data for an individual and the results of any 
measurements, analyses, and calculations of radioactive material deposited or 
retained in the body of an individual shall be reported to the individual as 
specified in this section. The information reported shall include data and 
results obtained in accordance with agency requirements, orders, or license and 
certificate of registration conditions, as shown in records maintained by the 
licensee or registrant in accordance with sec.289.202 of this title. Each 
notification and report shall: 
(A) be in writing; 
(B) include appropriate identifying data such as the name of the licensee or 
registrant, the name of the individual, and the individual's identification 
number; 
(C) include the individual's exposure information; and 
(D) contain the following statement: "This report is furnished to you under the 
provisions of 25 Texas Administrative Code, sec.289.203. You should preserve 
this report for further reference." 
(2) Each licensee or registrant shall advise each worker annually of the 
worker's dose as shown in records maintained by the licensee or registrant in 
accordance with sec.289.202(yy) of this title.
(3) At the request of a worker formerly engaged in activities controlled by the 
licensee or registrant, each licensee or registrant shall furnish a written 
report of the worker's exposure to sources of radiation. The report shall 
include the dose record for each year the worker was required to be monitored in 
accordance with sec.289.202(f) of this title. Such report shall be furnished 
within 30 days from the date of the request, or within 30 days after the dose of 
the individual has been determined by the licensee or registrant, whichever is 
later. The report shall cover the period of time that the worker's activities 
involved exposure to sources of radiation and the dates and locations of work 
under the license or certificate of registration in which the worker 
participated during this period. 
(4) When a licensee or registrant is required in accordance with 
sec.289.202(xx), (yy), and (zz) of this title to report to the agency any 
exposure of an individual to sources of radiation, the licensee or the 
registrant shall also provide the individual a written report of that 
individual's exposure data included therein. Such reports shall be transmitted 
at a time not later than the transmittal to the agency. 
(5) At the request of a worker who is terminating employment with the licensee 
or registrant in work involving exposure to sources of radiation during the 
current year, each licensee or registrant shall provide at termination to each 
such worker, or to the worker's designee, a written report regarding the 
radiation dose received by that worker from operations of the licensee or 
registrant during the current year or fraction thereof. If the most recent 
individual monitoring results are not available at that time, a written estimate 
of the dose shall be provided together with a clear indication that this is an 
estimate. 
(e) Presence of representatives of licensees or registrants and workers during 
inspection. 
(1) Each licensee or registrant shall afford to the agency at all reasonable 
times opportunity to inspect materials, machines, activities, facilities, 
premises, and records in accordance with this chapter. 
(2) During an inspection, agency inspectors may consult privately with workers 
as specified in subsection (f) of this section. The licensee or registrant may 
accompany agency inspectors during other phases of an inspection. 
(3) If, at the time of inspection, an individual has been authorized by the 
workers to represent them during agency inspections, the licensee or registrant 
shall notify the inspectors of such authorization and shall give the workers' 
representative an opportunity to accompany the inspectors during the inspection 
of physical working conditions. 
(4) Each workers' representative shall be routinely engaged in work under 
control of the licensee or registrant and shall have received instructions as 
specified in subsection (c) of this section. 
(5) Different representatives of licensees or registrants and workers may 
accompany the inspectors during different phases of an inspection if there is no 
resulting interference with the conduct of the inspection. However, only one 
workers' representative at a time may accompany the inspectors.
(6) With the approval of the licensee or registrant and the workers' 
representative, an individual who is not routinely engaged in work under control 
of the licensee or registrant, for example, a consultant to the licensee or 
registrant or to the workers' representative, shall be afforded the opportunity 
to accompany agency inspectors during the inspection of physical working 
conditions. 
(7) Notwithstanding the other provisions of this section, agency inspectors are 
authorized to refuse to permit accompaniment by any individual who deliberately 
interferes with a fair and orderly inspection. With regard to any area 
containing proprietary information, the workers' representative for that area 
shall be an individual previously authorized by the licensee or registrant to 
enter that area. 
(f) Consultation with workers during inspections. 
(1) Agency inspectors may consult privately with workers concerning matters of 
occupational radiation protection and other matters related to applicable 
provisions of agency regulations and licenses to the extent the inspectors deem 
necessary for the conduct of an effective and thorough inspection.
(2) During the course of an inspection any worker may bring privately to the 
attention of the inspectors, either orally or in writing, any past or present 
condition which that individual has reason to believe may have contributed to or 
caused any violation of the Act, the requirements in this chapter, license or 
certificate of registration conditions, or any unnecessary exposure of an 
individual to radiation from any source of radiation under the licensee's or 
registrant's control. Any such notice in writing shall comply with the 
requirements of subsection (g)(1) of this section. 
(3) The provisions of paragraph (2) of this subsection shall not be interpreted 
as authorization to disregard instructions in accordance with subsection (c) of 
this section. 
(g) Requests by workers for inspections. 
(1) Any worker or representative of workers who believes that a violation of the 
Act, the requirements of this chapter, or license or certificate of registration 
conditions exists or has occurred in work under a license or certificate of 
registration with regard to radiological working conditions in which the worker 
is engaged, may request an inspection by giving notice of the alleged violation 
to the agency. Any such notice shall be in writing, shall set forth the specific 
grounds for the notice, and shall be signed by the worker or representative of 
the workers. A copy shall be provided to the licensee or registrant by the 
agency no later than at the time of inspection except that, upon the request of 
the worker giving such notice, the worker's name and the name(s) of 
individual(s) referred to therein shall not appear in such copy or on any record 
published, released, or made available by the agency, except for good cause 
shown. 
(2) If, upon receipt of such notice, the agency determines that the request 
meets the requirements set forth in paragraph (1) of this subsection, and that 
there are reasonable grounds to believe that the alleged violation exists or has 
occurred, an inspection shall be made as soon as practicable to determine if 
such alleged violation exists or has occurred. Inspections in accordance with 
this section need not be limited to matters referred in the request. 
(3) No licensee or registrant, contractor or subcontractor of a licensee or 
registrant shall discharge or in any manner discriminate against any worker 
because of the following: 
(A) such worker has filed any request or instituted or caused to be instituted 
any proceeding under this chapter; 
(B) such worker has testified or is about to testify in any such proceeding; or 
(C) the exercise by such worker on behalf of that individual or others of any 
option afforded by this section. 
(h) Inspections not warranted. 
(1) If the agency determines, with respect to a request under subsection (g) of 
this section, that an inspection is not warranted because there are no 
reasonable grounds to believe that a violation exists or has occurred, the 
agency shall notify the requestor in writing of such determination. The 
requestor may obtain review of such determination in accordance with the 
provisions of the Act and Government Code, Chapters 2001 and 2002. 
(2) If the agency determines that an inspection is not warranted because the 
requirements of subsection (g)(1) of this section have not been met, the agency 
shall notify the requestor in writing of such determination. Such determination 
shall be without prejudice to the filing of a new request meeting the 
requirements of subsection (g)(1) of this section. 
(i) Notice to employees. The following form, or an equivalent as stated in 
subsection (b)(3) of this section, shall be posted.
Figure 1: 25 TAC sec.289.203(i) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on February 9, 1998.
TRD-9801763
Susan K. Steeg
General Counsel
Texas Department of Health
Earliest possible date of adoption: March 22, 1998
For further information, please call: (512) 458-7236

TITLE 30. ENVIRONMENTAL QUALITY
PART I. Texas Natural Resource Conservation Commission
CHAPTER 106.Exemptions from Permitting
SUBCHAPTER I.Manufacturing
30 TAC sec.106.226
(Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas Natural 
Resource Conservation Commission or in the Texas Register office, Room 245, 
James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Natural Resource Conservation Commission (TNRCC or commission) 
proposes new sec.106.226, concerning Paints, Varnishes, Ink, and Other Coating 
Manufacturing and sec.106.375, concerning Aqueous Solutions for Electrolytic and 
Electroless Processes, and amendments to sec.106.351, concerning Salt Water 
Disposal (Petroleum), sec.106.435, concerning Classic or Antique Automobile 
Restoration Facility, and sec.106.477, concerning Anhydrous Ammonia Storage. The 
commission also proposes the repeal of the existing sec.106.226 and sec.106.375. 
EXPLANATION OF PROPOSED RULES. The commission proposes the repeal and of and the 
promulgation of new sec.106.226 and sec.106.375 and has restructured and 
reorganized the new sections for easier understanding and use. In the new 
sec.106.226, restrictions on emissions would be accomplished through limits on 
rates of raw material use rather than stating emission limits. The commission is 
also adding recordkeeping requirements to aid enforcement. New sec.106.375 is 
revised to reduce the risk of potentially harmful exposure to heavy metals and 
hydrochloric acid. 
The proposed new sec.106.226 prohibits the use, under exemption, of the heavy 
metals strontium and cobalt in concentrations of more than 0.1% by weight. These 
metals, used to add color to paints and inks, are added to the existing list of 
heavy metals within the section which already have percentage weight 
restrictions. Heavy metals have low effects screening levels and can be toxic 
with sufficient concentration or exposure. To be protective of human health, use 
of the metals in concentrations above 0.1% would require a detailed review of 
the facility's operation, making the use of an exemption from permitting 
inappropriate. 
The proposed amendment to sec.106.351 requires that new salt water disposal 
facilities register with the commission using the PI-7 form unless the facility 
processes the water without exposing it to the atmosphere or processes 540,000 
gallons or less of salt water per day. This restriction will prevent users of 
the exemption from exceeding the 25 ton per year emission limit of volatile 
organic compounds. The restriction should also assure compliance with the 
hydrogen sulfide emission limits contained in 30 TAC sec.112.31, concerning 
Allowable Emissions-Residential, Business, or Commercial Property and 
sec.112.32, concerning Allowable Emissions-Other Property. Registration of the 
larger facilities will allow the commission to better track and inventory 
emissions. The proposed new sec.106.375 prohibits the use of chromic acid in 
solutions to prevent emissions of chromium, a heavy metal with exposure limits 
that would need a more thorough analysis than that allowed by an exemption from 
permitting. The commission would add new language to the section requiring 
emissions from authorized operations be vented through a vertical stack to 
provide good dispersion. A further restriction would be placed on the 
concentrations and temperature of hydrochloric acid used in aqueous solutions. 
These new restrictions are proposed to reduce the risk of human health effects 
from operations authorized under the exemption from permitting. 
The proposed amendment to sec.106.435 is purely administrative and changes a 
reference to the Texas Traffic Laws to the Texas Transportation Code, 
recognizing recent changes in the Texas Civil Statutes. 
The proposed amendment to sec.106.477 adds clarification that the restrictions 
in the section apply to permanent ammonia storage tanks and nurse tanks to help 
prevent nuisances. This section is primarily used by agricultural operations, 
and the nurse tanks are those carried to the field and used to inject ammonia 
into the soil to increase nitrogen levels. These restrictions are proposed to 
protect human health. 
FISCAL NOTE. Stephen Minick, Strategic Planning and Appropriations, has 
determined that for the first five-year period the sections are in effect, there 
will be no significant fiscal implications for state or local government as a 
result of administration or enforcement of the sections. 
PUBLIC BENEFIT. Mr. Minick also has determined that for each year of the first 
five years the sections are in effect, the anticipated public benefit will be a 
reduced risk of exposure to potentially harmful concentrations of heavy metals, 
hydrochloric acid fumes, and ammonia. There will be minimal costs to persons or 
small businesses who are required to comply with the sections as proposed. 
REGULATORY IMPACT ANALYSIS. The commission has reviewed the proposed rulemaking 
in light of the regulatory analysis requirements of Texas Government Code (the 
Code), sec.2001.0225, and has determined that the rulemaking is not subject to 
sec.2001.0225 because it does not meet the definition of a "major environmental 
rule" as defined in the Code, and it does not meet any of the four applicability 
requirements listed in sec.2001.0225(a). 
This proposal does not exceed a standard set by federal law and is not 
specifically required by state law. Exemptions from permitting are not addressed 
in federal law. 
This proposal falls within the commission's authority under Texas Health and 
Safety Code, sec.382.057, to establish conditions to allow an exemption from 
permitting. 
This proposal does not exceed the requirements of a delegation agreement or 
contract between the state and federal government as there is no agreement or 
contract between the TNRCC and the federal government concerning standard 
exemptions. 
This rule is proposed under a specific state law. The commission has the 
statutory authority to propose and adopt rules concerning exemptions from 
permitting under Texas Health and Safety Code, sec.382.057. 
TAKINGS IMPACT ASSESSMENT. The commission has prepared a takings impact 
assessment for these rules under Texas Government Code, sec.2007.043. The 
specific purpose of this proposal is to reduce the chance of exposure to 
potentially harmful levels of certain metals and compounds. This proposal does 
not constitute a taking of private, real property.
COASTAL MANAGEMENT PLAN. The commission has determined that this rulemaking 
action relates to an action or actions subject to the Texas Coastal Management 
Program (CMP) in accordance with the Coastal Coordination Act of 1991, as 
amended (Texas Natural Resources Code, sec.sec.33.201 et. seq.), and the 
commission's rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency 
with the Texas Coastal Management Program. As required by 31 TAC 
sec.505.11(b)(2) and 30 TAC sec.281.45(a)(3), relating to actions and rules 
subject to the CMP, commission rules governing air pollutant emissions must be 
consistent with the applicable goals and policies of the CMP. The commission has 
reviewed this rulemaking action for consistency with the CMP goals and policies 
in accordance with the rules of the Coastal Coordination Council, and has 
determined that this rulemaking action is consistent with the applicable CMP 
goals and policies. These amendments should not cause any increase in emissions.
PUBLIC HEARING. A public hearing on this proposal will be held March 16, 1998, 
at 2:00 p.m. in Room 2210 of TNRCC Building F, located at 12100 Park 35 Circle, 
Austin. The hearing is structured for the receipt of oral or written comments by 
interested persons. Individuals may present oral statements when called upon in 
order of registration. Open discussion within the audience will not occur during 
the hearing; however, an agency staff member will be available to discuss the 
proposal 30 minutes prior to each hearing and will answer questions before and 
after the hearing. 
SUBMITTAL OF COMMENTS. Written comments may be mailed to Lisa Martin, TNRCC 
Office of Policy and Regulatory Development, MC 205, P.O. Box 13087, Austin, 
Texas 78711-3087 or faxed to (512) 239-4808. All comments should reference Rule 
Log Number 97180-106-AI. Comments must be received by 5:00 p.m., March 23, 1998. 
For further information, please contact Kerry Drake, New Source Review 
Permitting Division, (512) 239-1112, Dale Beebe-Farrow, New Source Review 
Permitting Division, (512) 239-1310, or Beecher Cameron, Air Policy and 
Regulations Division, (512) 239-1495. 
Persons with disabilities who have special communication or other accommodation 
needs who are planning to attend the hearings should contact the agency at (512) 
239-4900. Requests should be made as far in advance as possible. 
STATUTORY AUTHORITY. The repeal is proposed under the Texas Health and Safety 
Code, the Texas Clean Air Act (TCAA), sec.sec.382.012, 382.017, and 382.057. 
Section 382.012 requires the commission to prepare and develop a general, 
comprehensive plan for the proper control of the state's air. Section 382.017 
authorizes the commission to adopt rules consistent with the policy and purposes 
of the TCAA, while sec.382.057 authorizes the commission by rule to exempt 
certain facilities or changes to facilities from the requirements of 
sec.382.0518 if such facilities or changes will not make a significant 
contribution of air contaminants to the atmosphere. 
The proposed repeal implements Texas Health and Safety Code, sec.382.057.
sec.106.226.Paints, Varnishes, Ink, and Other Coating Manufacturing (Previously 
SE 125).
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on February 5, 1998.
TRD-9801642
Kevin McCalla
Director, Legal Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: May 7, 1998
For further information, please call: (512) 239-1966

STATUTORY AUTHORITY. The new section is proposed under the Texas Health and 
Safety Code, the Texas Clean Air Act (TCAA), sec.sec.382.012, 382.017, and 
382.057. Section 382.012 requires the commission to prepare and develop a 
general, comprehensive plan for the proper control of the state's air. Section 
382.017 authorizes the commission to adopt rules consistent with the policy and 
purposes of the TCAA, while sec.382.057 authorizes the commission by rule to 
exempt certain facilities or changes to facilities from the requirements of 
sec.382.0518 if such facilities or changes will not make a significant 
contribution of air contaminants to the atmosphere. 
The proposed new section implements Texas Health and Safety Code, sec.382.057.

sec.106.226.Paints, Varnishes, Ink, and Other Coating Manufacturing (Previously 
SE 125).
Coating manufacturing operations including raw material storage, weighing, 
mixing, milling, grinding, thinning, and packaging are exempt, provided the 
conditions of this section are met. Coating manufacturing is defined as 
combining ingredients that are manufactured off-site to make paints, varnishes, 
sealants, stains, adhesives, inks, pigments, maskants, and paint strippers, etc. 
Resin manufacturing is not exempt under this section. 
(1) Materials usage shall not exceed the following rates:
(A) 345,000 gallons per year of solvent for all operations at a site; and 
(B) 200,000 pounds of dry powder per year for all operations at a site. 
(2) Operations involving powders which contain more than 0.1% by weight of 
chromium, cadmium, asbestos, lead, arsenic, cobalt, or strontium are not 
authorized by this section. 
(3) The following conditions must be met to prevent and control emissions. 
(A) There shall be no visible emissions from any emission point. 
(B) Bags or sacks of dry powders shall be opened within an enclosed bag slitter 
or within an enclosed area. 
(C) Material transfer, storage operations, or other similar operations shall be 
conducted in enclosed or covered containers which are opened only as necessary 
for transfer of ingredients. 
(D) Mixing, milling, packaging, and filling operations shall be conducted under 
a hood or within an enclosure designed to capture emissions, which shall then be 
vented externally or through a carbon adsorption system.
(E) Operations which involve dry powders or pigments shall be vented through a 
filter. 
(F) Any spills of dry powders or solvents shall be cleaned up promptly in a 
manner designed to control emissions. 
(G) Waste materials shall be stored in covered containers and disposed of 
properly. 
(4) Emissions from any operation which are vented externally shall be exhausted 
using forced air through a stack with an unobstructed vertical discharge. The 
stack must be, at a minimum, four feet above the peak of the roofline. 
(5) The owner or operator of the facility shall keep records of all liquid and 
solid material usage rates on a monthly basis to demonstrate compliance with 
paragraph (1) of this section. The usage data shall be maintained for the most 
recent 24-month period. 
Filed with the Office of the Secretary of State, on February 5, 1998.
TRD-9801643
Kevin McCalla
Director, Legal Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: May 7, 1998
For further information, please call: (512) 239-1966

SUBCHAPTER O. Oil and Gas
30 TAC sec.106.351
STATUTORY AUTHORITY. The amendment is proposed under the Texas Health and Safety 
Code, the Texas Clean Air Act (TCAA), sec.sec.382.012, 382.017, and 382.057. 
Section 382.012 requires the commission to prepare and develop a general, 
comprehensive plan for the proper control of the state's air. Section 382.017 
authorizes the commission to adopt rules consistent with the policy and purposes 
of the TCAA, while sec.382.057 authorizes the commission by rule to exempt 
certain facilities or changes to facilities from the requirements of 
sec.382.0518 if such facilities or changes will not make a significant 
contribution of air contaminants to the atmosphere. 
The proposed amendment implements Texas Health and Safety Code, sec.382.057.

sec.106.351.Salt Water Disposal (Petroleum) (Previously SE 65).
Salt water disposal facilities used to handle aqueous liquid wastes from 
petroleum production operations and water injection facilities are exempt, 
provided that the following conditions of this section are met.
(1)-(3) (No change.) 
<nl>(4)<ol> <nl>Before construction of the facility
begins, the facility shall be registered with the Texas Natural Resource 
Conservation Commission's New Source Review Permitting Division using Form PI-7, 
unless one of the following exceptions applies: <ol>
<nl>(A)<ol> <nl> all delivery, storage, and handling of salt water at the 
facility is enclosed so that the salt water is not exposed to the atmosphere; or 
<ol>
<nl>(B)<ol> <nl> delivery of salt water to the facility in any calendar day will 
not exceed 540,000 gallons. <ol>
Filed with the Office of the Secretary of State, on February 5, 1998.
TRD-9801644
Kevin McCalla
Director, Legal Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: May 7, 1998
For further information, please call: (512) 239-1966

SUBCHAPTER P.Plant Operations
30 TAC sec.106.375
(Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas Natural 
Resource Conservation Commission or in the Texas Register office, Room 245, 
James Earl Rudder Building, 1019 Brazos Street, Austin.)
STATUTORY AUTHORITY. The repeal is proposed under the Texas Health and Safety 
Code, the Texas Clean Air Act (TCAA), sec.sec.382.012, 382.017, and 382.057. 
Section 382.012 requires the commission to prepare and develop a general, 
comprehensive plan for the proper control of the state's air. Section 382.017 
authorizes the commission to adopt rules consistent with the policy and purposes 
of the TCAA, while sec.382.057 authorizes the commission by rule to exempt 
certain facilities or changes to facilities from the requirements of 
sec.382.0518 if such facilities or changes will not make a significant 
contribution of air contaminants to the atmosphere. 
The proposed repeal implements Texas Health and Safety Code, sec.382.057. 
sec.106.375. Aqueous Solutions for Electrolytic and Electroless Processes 
(Previously SE 41). 
Filed with the Office of the Secretary of State, on February 5, 1998.
TRD-9801645
Kevin McCalla
Director, Legal Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: May 7, 1998
For further information, please call: (512) 239-1966

STATUTORY AUTHORITY. The new section is proposed under the Texas Health and 
Safety Code, the Texas Clean Air Act (TCAA), sec.sec.382.012, 382.017, and 
382.057. Section 382.012 requires the commission to prepare and develop a 
general, comprehensive plan for the proper control of the state's air. Section 
382.017 authorizes the commission to adopt rules consistent with the policy and 
purposes of the TCAA, while sec.382.057 authorizes the commission by rule to 
exempt certain facilities or changes to facilities from the requirements of 
sec.382.0518 if such facilities or changes will not make a significant 
contribution of air contaminants to the atmosphere. 
The proposed new section implements Texas Health and Safety Code, sec.382.057.

sec.106.375. Aqueous Solutions for Electrolytic and Electroless Processes 
(Previously SE 41).
Equipment using aqueous solutions is exempt, providing the conditions of this 
section are met. 
(1) This section authorizes the following operations: 
(A) anodizing, alodining, electrodeposition, electroless plating, elctrolytic 
polishing, and electrolytic stripping, as follows. 
(i) For plating onto or stripping from any basis substrate, only brass, bronze, 
cadmium, copper, iron, lead, nickel, tin, zinc, and precious metals may be used. 
(ii) Chromic acid shall not be used. 
(B) cleaning, electroless stripping, etching, or other surface preparation and 
finishing, not including chemical milling or electrolytic metal recovery and 
reclaiming systems. 
(2) Operating conditions. 
(A) The hydrochloric acid tank temperature shall not exceed 100 degrees 
Fahrenheit. 
(B) The hydrochloric acid tank concentration shall not exceed 19.0%. 
(C) Aqueous solutions shall be used in an enclosed building. If the doors and 
windows of the building are open for ventilation, emissions shall either be 
controlled with a fume suppressant or be captured and exhausted using forced air 
through a stack with an unobstructed vertical discharge. The stack must be, at a 
minimum, four feet above the peak of the roofline.
Filed with the Office of the Secretary of State, on February 5, 1998.
TRD-9801646
Kevin McCalla
Director, Legal Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: May 7, 1998
For further information, please call: (512) 239-1966

SUBCHAPTER S.Surface Coating
30 TAC sec.106.435
STATUTORY AUTHORITY. The amendment is proposed under the Texas Health and Safety 
Code, the Texas Clean Air Act (TCAA), sec.sec.382.012, 382.017, and 382.057. 
Section 382.012 requires the commission to prepare and develop a general, 
comprehensive plan for the proper control of the state's air. Section 382.017 
authorizes the commission to adopt rules consistent with the policy and purposes 
of the TCAA, while sec.382.057 authorizes the commission by rule to exempt 
certain facilities or changes to facilities from the requirements of 
sec.382.0518 if such facilities or changes will not make a significant 
contribution of air contaminants to the atmosphere. 
The proposed amendment implements Texas Health and Safety Code, sec.382.057.

sec.106.435. Classic or Antique Automobile Restoration Facility (Previously SE 
116). 
"Classic" or "Antique" vehicle restoration facilities (the terms "classic" and 
"antique" vehicle as determined by the Texas Department of Public Safety Vehicle 
Inspection and Registration Section <nl>under Texas Transportation Code, Chapter 
502, sec.502.274 (concerning Classic Motor Vehicles) or sec.502.275 (concerning 
Certain Antique Vehicles; Offense)<ol> [pursuant to Texas Traffic Laws (Texas 
Civil Statutes, Article 6675a-5n. CLASSIC MOTOR VEHICLES: REGISTRATION AND 
LICENSE PLATES)]) qualify for this exemption from permitting if all of the 
following conditions of this section are met. 
(1)-(6) (No change.) 
Filed with the Office of the Secretary of State, on February 5, 1998.
TRD-9801647
Kevin McCalla
Director, Legal Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: May 7, 1998
For further information, please call: (512) 239-1966

SUBCHAPTER U.Tanks, Storage, and Loading
30 TAC sec.106.477
STATUTORY AUTHORITY. The amendment is proposed under the Texas Health and Safety 
Code, the Texas Clean Air Act (TCAA), sec.sec.382.012, 382.017, and 382.057. 
Section 382.012 requires the commission to prepare and develop a general, 
comprehensive plan for the proper control of the state's air. Section 382.017 
authorizes the commission to adopt rules consistent with the policy and purposes 
of the TCAA, while sec.382.057 authorizes the commission by rule to exempt 
certain facilities or changes to facilities from the requirements of 
sec.382.0518 if such facilities or changes will not make a significant 
contribution of air contaminants to the atmosphere. 
The proposed amendment implements Texas Health and Safety Code, sec.382.057.

sec.106.477. Anhydrous Ammonia Storage (Previously SE 84). 
Anhydrous ammonia storage tanks and distribution facilities that meet the 
following conditions of this section are exempt.
(1) All valves, connectors, and hoses<nl>, associated with permanent storage 
tanks and any nurse tanks stored on-site,<ol> shall be properly maintained in 
leak-proof condition at all times. 
(2) The capacity of <nl>each permanent<ol> [ the] storage <nl>tank<ol> [tanks] 
is 30,000 gallons or less. 
(3) (No change.) 
(4) When relieving pressure <nl>from hoses associated with permanent storage 
tanks and any nurse tanks<ol> [from connectors and hoses], all vapors shall be 
bled into an adequate volume of water and never to the atmosphere. 
(5) Each <nl>permanent storage<ol> tank <nl>and any nurse tanks stored on-site 
are<ol> [is] equipped to prevent unauthorized operation. 
(6) (No change.) 
(7) <nl>Each permanent storage<ol> [The] tank is located at least 1/4 mile from 
any recreational area or residence or other structure not occupied or used 
solely by the owner of the property upon which the facility is located. 
Filed with the Office of the Secretary of State, on February 5, 1998.
TRD-9801648
Kevin McCalla
Director, Legal Division
Texas Natural Resource Conservation Commission
Proposed date of adoption: May 7, 1998
For further information, please call: (512) 239-1966

TITLE 31. NATURAL RESOURCES AND CONSERVATION
PART I. General Land Office
CHAPTER 13.Land Resources
Applications to Purchase or Lease Vacant and Unsurveyed Public School Land
31 TAC sec.sec.13.71-13.86
The General Land Office (GLO) proposes new sec.sec.13.71-13.86, relating to 
applications to purchase or lease vacant and unsurveyed public school land under 
the Texas Natural Resource Code, Subchapter E. The proposed rules, upon 
adoption, will replace 31 TAC sec.1.1 (relating to Good-Faith Claimants), and 
sec.1.2 (relating to Applicants). Sections 1.1 and 1.2 will be proposed for 
repeal. 
Spencer Reid, General Counsel, has determined that for the first five-year 
period the rules are in effect, there will be no anticipated fiscal implications 
as a result of the administration of these rules. 
Mr. Reid also has determined that, for the first five-year period the rules are 
in effect, the public benefit anticipated as a result of administration of these 
rules streamline the administrative process. There will be no effect on small 
businesses. There is no anticipated economic cost to persons who are required to 
comply with the rule as proposed other than as required by law. 
Interested parties may submit comments to Carol Milner, General Land Office, 
1700 North Congress, Room 626, Austin, Texas 78701-1495. Comments must be 
submitted by 5:00 p.m. on Friday, March 13, 1998. 
The new subchapter is proposed under Texas Natural Resources Code, sec.51.201, 
which authorizes the commissioner to promulgate rules relating to applications 
to purchase or lease vacant and unsurveyed public school land under the Texas 
Natural Resource Code, Subchapter E. 
The Texas Natural Resources Code , Subchapter E is affected by this proposed 
rulemaking.

sec.13.71.Purpose and Scope.
This subchapter applies to the application to purchase or lease vacant and 
unsurveyed public school land as set forth in Texas Natural Resources Code, 
Chapter 51, Subchapter E. 

sec.13.72.Definitions.
The following words and terms, when used in this subchapter, have the same 
meaning as set forth in Texas Natural Resources Code , Subchapter E, Chapter 51: 
Applicant; Application; Good-Faith Claimant; Interest; Interested Person; and 
Vacancy. The following terms, when used in this subchapter, mean the following 
unless the context clearly indicates otherwise: 
Agency - The General Land Office. 
Commissioner - The Commissioner of the General Land Office.
Eligible Surveyor - A duly elected surveyor in a county that has an elected 
county surveyor or a licensed state land surveyor licensed by the Texas Board of 
Professional Land Surveying. 

sec.13.73.General Provisions/Exclusions.
(a) Delegation of powers and duties. The commissioner may delegate to one or 
more employees of the agency the authority to perform any action of the 
commissioner or the agency required or permitted by this subchapter, provided 
however, only the commissioner may sign final orders in contested cases (as that 
term is defined in the Texas Government Code, Administrative Procedures Act, 
Chapter 2001). In the event of the death, disability, or absence of the 
commissioner, the official designated by law to act in such events may sign such 
orders. 
(b) Exceptions to this subchapter. The commissioner may, upon written motion 
from an interested person or the agency, and upon notice and opportunity for 
hearing grant exceptions to the procedural provisions of this subchapter if the 
commissioner determines that such exceptions are in the interest of justice or 
the efficient administration of this subchapter. 

sec.13.74.Application.
An applicant may apply to purchase or lease land claimed to be unsurveyed public 
school land by filing an application in the form prescribed by the commissioner. 

sec.13.75.Filing the Application.
(a) The commissioner shall mark each application accepted for filing with the 
date and hour that it is received and shall assign it a file number. The prefix 
"MA" (Mineral Application) shall be assigned to all applications to lease 
minerals or geothermal resources. The prefix "SF" (Scrap File) shall be assigned 
to all applications to purchase the surface estate. 
(b) The commissioner may refuse to accept for filing an application that: 
(1) has material omissions or is incomplete; 
(2) does not describe the land claimed to be vacant; or 
(3) describes as vacant land, land that has been finally adjudicated in a court 
of this state or of the United States not to be vacant.

sec.13.76.Establishing Good-Faith Status.
(a) An applicant may assert good-faith status as to all or a portion of the land 
claimed to be unsurveyed public school land in the application.
(b) An applicant or interested person may assert status as a good-faith claimant 
by filing a claim no later than the 20th day preceding the first date on which 
the hearing on the merits begins. 
(1) a claim of good-faith status shall state the grounds for the claim and 
describe the land subject to the applicant's or interested person's good-faith 
claim. 
(2) a person asserting good-faith status shall serve a copy of the notice of the 
claim filed with the commissioner on all interested persons by certified mail, 
return receipt requested. A person responsible for service shall return the 
original US Postal Service receipts and shall become their custodian. 
(c) An applicant or interested persons seeking good-faith status shall submit 
evidence of good-faith status by affidavit accompanied by certified copies of 
documents evidencing title. A good-faith claimant may amend an affidavit of 
good-faith status or file additional documents in support thereof upon the 
request of the commissioner or otherwise no less than 10 days preceding the date 
the hearing on the merits begins. Evidence of good-faith claims may include: 
(1) a certified copy of one or more recorded instruments, such as deeds, 
judgments, or other muniments of title; 
(2) a sworn affidavit by two disinterested third parties containing facts 
supporting the occupancy and use of the land claimed to be vacant by the good-
faith claimant or the claimant's predecessors in interest; and 
(3) such other evidence deemed reliable by the commissioner.

sec.13.77.Priority Among Good-Faith Claimants.
(a) If more than one interested person files a claim of good-faith status on 
land claimed to be vacant or on some portion thereof, and the commissioner 
enters a finding that more than one claimant is a good-faith claimant under 
Texas Natural Resource Code, sec.51.172(3), a claimant qualifying as a good-
faith claimant under sec.51.172(3)(B) shall have priority over an applicant or 
good-faith claimant qualifying as a good-faith claimant under sec.51.172(3)(A), 
then a good-faith claimant under sec.51.172(3)(C) and a good-faith claimant 
under sec.51.172(3)(D) shall have the lowest priority among good-faith 
claimants.
(b) In the event the commissioner determines there are multiple good-faith 
claimants who desire to purchase all or a portion of property found to be 
vacant, unsurveyed public land, the commissioner shall apply the priority rules 
set forth in (a) of this section and allocate the preference right to purchase 
under Texas Natural Resources Code, sec.51.197 among the various good-faith 
claimants. The preference right to purchase may be exercised as provided in 
Texas Natural Resources Code, sec.51.197. 

sec.13.78.Deposit for Cost of Proceeding on the Application.
(a) The commissioner shall notify the applicant, including an applicant who 
asserts good-faith claimant status, in writing of the requirement that the 
applicant make an initial deposit in the amount of the commissioner's estimated 
costs of proceeding under the application, including the costs of:
(1) the surveyor; 
(2) the preparation of copies, working sketches, and the reports by the 
surveyor; 
(3) serving notices, including by certified mail and/or by publication, and 
making copies, including copies of plats; and 
(4) other costs, excluding salaries and overhead expenses, expected to be 
expended by the agency in investigating the existence and boundaries of 
unsurveyed public school land, up to, and including, the hearing on the merits 
of the application. 
(b) If the amount initially estimated is insufficient to pay the costs, the 
commissioner shall notify the applicant in writing to make a supplemental 
deposit in an amount estimated by the commissioner. 
(c) The applicant shall, within 30 days of the date that the commissioner's 
initial or supplemental estimate of the cost of proceeding under the application 
is mailed to the applicant: 
(1) deposit funds in the amount of the estimated cost with the agency; or 
(2) appeal the amount of an initial or supplemental deposit determined by the 
commissioner in the manner provided by Texas Natural Resources Code, sec.51.176. 
(d) If the applicant fails to deposit the initial or supplemental deposit within 
the prescribed time, the commissioner shall cancel the application. Cancellation 
terminates all rights of the applicant under the terminated application.
(e) The applicant shall deposit funds in cash (including cashier checks, 
certified checks, money orders or electronic funds transfer). The deposit date 
shall be the date of tender. 

sec.13.79.Appointment of Surveyor.
(a) No later than the 60th day after the date on which the required deposit is 
received by the agency, the commissioner shall appoint an eligible surveyor to 
survey the area claimed to be vacant. The commissioner shall select among the 
eligible surveyors based on the following factors:
(1) the prior experience and knowledge of an eligible surveyor with the land 
titles in the area of the alleged vacancy; and 
(2) the location of an eligible surveyor in relation to the location of the 
alleged vacancy, with preference given to those within 100 miles of the alleged 
vacancy. 
(b) All fees and expenses, including notices and copies, shall be paid by the 
applicant from the initial deposit or any supplementary deposits made by the 
applicant in accordance with sec.13.78 of this title (relating to Deposit for 
Cost of Proceeding on the Application). 
(c) The commissioner shall provide a statement of the disposition of deposited 
funds at the time and in the manner provided by Texas Natural Resources Code , 
sec.51.117(b). 

sec.13.80.Notice of Intent to Survey.
(a) No later than the 10th day after the date on which the commissioner appoints 
the surveyor, the commissioner shall give notice of intent to survey by 
certified mail, return receipt requested, to all interested persons at the 
addresses set out in the application, along with a true and legible copy of the 
application. 
(b) The notice shall contain: 
(1) the date of the notice; 
(2) a statement that a vacancy application has been made;
(3) the name, address and telephone number of the surveyor appointed to make the 
survey; 
(4) a statement that the survey may begin any time after the 20th day after the 
date of the notice but may be delayed by law; and 
(5) a statement that an interested person is entitled to: 
(A) observe the conduct of the survey; 
(B) receive a copy of the final survey report and other documents filed by the 
surveyor; and 
(C) participate in any proceedings related to the vacancy determination. 
(c) If the location of an interested person is unknown or if notice is returned 
as unclaimed or undeliverable, the commissioner shall publish notice as 
prescribed by the Texas Rules of Civil Procedure. The foregoing does not apply 
if the notice is returned marked refused. 
(d) If notice by publication is made, the survey may not begin and further 
proceedings may not be held until the 30th day after publication is completed, 
provided however, upon receipt of a written request to proceed with the survey 
along with a statement by an interested person or the surveyor that the delay 
required by publication may materially affect the accuracy of the survey because 
of the possibility of the destruction, alteration, or removal of natural 
features, monuments, or witness objects, or for other good cause, the 
commissioner may enter a written order that the survey proceed prior to the 30th 
day after the date of the last publication of the notice. Notice of the request 
to proceed with the survey and of any order issued in response to the request 
shall be sent by the commissioner by first class mail to all interested persons. 
(e) The cost of providing the notices required by this subsection shall be paid 
by the applicant out of the initial deposit or any supplementary deposits made 
by the applicant in accordance with sec.13.78 of this title (relating to Deposit 
for Cost of Proceeding on the Application). 
(f) A person may waive service of notice as provided in Texas Natural Resources 
Code , sec.51.180. A waiver of notice shall be in the form prescribed by the 
commissioner.

sec.13.81.Disqualification of a Surveyor.
The commissioner may, upon written motion of an interested person and upon 
notice and opportunity for hearing, disqualify a surveyor on the grounds of 
bias, prejudice or conflict of interest. The burden shall be on the movant to 
prove bias, prejudice or conflict of interest.

sec.13.82.Survey Report.
(a) The surveyor's report shall meet the requirement of sec.7.7, of this title 
(relating to Surveyors Report, General). 
(b) The surveyor shall file the surveyor's report with the agency within the 
time prescribed by law, along with a sufficient number of copies to provide 
copies to the applicant and all interested persons. A surveyor's report may be 
rejected if the appropriate number of copies does not accompany the report. 
(c) The commissioner shall serve a true copy of the survey report, field notes, 
plat and all other documents filed by the surveyor on each interested person, 
including those named in the survey report by certified mail, return receipt 
requested, no later than the fifth business day after the survey report is filed 
and accepted by the commissioner.

sec.13.83.Exceptions to Survey.
(a) An interested person or the agency may file exceptions or other responses to 
the survey report, field notes, and plat not later than the 30th day after the 
date the survey is accepted by the commissioner . Any interested person, or the 
agency, may file a reply to exceptions no later than the 20th day after the date 
the exceptions are filed. 
(b) A person filing exceptions or a reply to exceptions shall include a 
statement that a copy has been served by US mail, return receipt requested on 
each interested person, the surveyor and the agency. A person shall retain the 
original US Postal Service receipts and become their custodian.
(c) Neither failing to file exceptions and/or replies nor filing exceptions 
and/or replies to original or additional survey reports, field notes, plats, or 
other documents prepared by the surveyor shall in any way affect or impair the 
right of an applicant or interested person to make exceptions to the survey at a 
hearing on the merits. 

sec.13.84.Additional Surveys.
(a) The commissioner, after notice is sent by US certified mail return receipt 
requested to all interested persons, may direct the surveyor to make additional 
surveys, to investigate as the commissioner deems necessary, and to prepare 
supplemental reports, plats, and field notes. 
(b) The commissioner shall serve a true copy of any additional survey reports, 
field notes, plat and other information on each interested person, including 
those named in the survey report by US certified mail, return receipt requested, 
not later than the fifth business day after the survey report has been accepted 
for filing by the commissioner. 
(c) Any interested person may file exceptions or other responses to such 
additional survey reports, no later than the 20th day after the date the 
required documents are accepted for filing by the commissioner.

sec.13.85.Action on Application.
(a) No later than the 90th day after the date on which the commissioner accepts 
the survey report and other documents, but in any event no later than the 180th 
day after the initial survey is filed, the commissioner shall: 
(1) deny the application; 
(2) hold a hearing to determine the existence and boundaries of the vacancy; or 
(3) enter a decision without a hearing in accordance with sec.13.86 of this 
title (relating to Decision Without a Hearing).
(b) For good cause, the commissioner may, by written order, extend the time for 
entering an order or holding a hearing. 

sec.13.86.Decision Without A Hearing.
(a) After the commissioner appoints a surveyor and the surveyor has submitted 
the surveyor's final report, an applicant asserting good-faith status may 
request that the commissioner make a determination on the application without 
notice or hearing upon filing of evidence that: 
(1) the good-faith claimant owns all of the land and interest in land, including 
all mineral interests, completely surrounding the land claimed to be vacant; 
(2) there is no subsisting prior application covering the land described in the 
good-faith claimant's application; 
(3) no previous application has been made covering the land described in the 
good-faith claimant's application; 
(4) the good-faith claimant meets all other requirements of a good-faith 
claimant; and 
(5) no interested party has filed a notice to intervene in the proceeding. 
(b) If the commissioner finds that the evidence presented is accurate and no 
interested party has filed a notice to intervene, then upon the commissioner's 
acceptance of a final survey report by the surveyor, the commissioner may enter 
an order without notice to other persons declaring the land covered by the 
application to be vacant unsurveyed public school land if the commissioner finds 
that: 
(1) the applicant (or co-applicants) own all of the land and interests in land, 
including all mineral interests, completely surrounding the land claimed to be 
vacant; 
(2) there is no subsisting prior application covering the land described in the 
application under consideration; 
(3) no previous application has been made covering the land described in the 
application under consideration that has been denied on substantive grounds; and 
(4) the applicant meets all other requirements of a good-faith claimant. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on February 9, 1998.
TRD-9801833
Garry Mauro
Commissioner
General Land Office
Earliest possible date of adoption: March 22, 1998
For further information, please call: (512) 305-9129

TITLE 34. PUBLIC FINANCE
PART I. Comptroller of Public Accounts
CHAPTER 3.Tax Administration
SUBCHAPTER N.County Sales and Use Tax
34 TAC sec.3.251
The Comptroller of Public Accounts proposes an amendment to sec.3.251, 
concerning adopting or abolishing county tax. House Bill 92, 75th Legislature, 
1997, amended the Local Government Code effective September 1, 1997, by adding 
Chapter 334 and Chapter 335 concerning sports and community venue projects and 
districts. The amendment explains that the notification requirements, effective 
dates, and contested election provisions in sec.3.251 apply to an election to 
impose sales and use tax for a sports and community venue project that increases 
a county tax rate. 
The amendment also replaces all references to Texas Civil Statutes, Articles 
1118x or 1118y with references to the Transportation Code, Chapters 451 or 452. 
The provisions in Articles 1118x and 1118y have been recodified in the 
Transportation Code. 
Mike Reissig, chief revenue estimator, has determined that for the first five-
year period the amendment will be in effect there will be no significant revenue 
impact on the state or local government. 
Mr. Reissig also has determined that for each year of the first five years the 
rule is in effect the public will benefit by the amended rule reflecting state 
law, thereby making the rule easier to read and interpret. The rule is adopted 
under the Tax Code, Title 2, and does not require a statement of fiscal 
implications for small businesses. There is no significant anticipated economic 
cost to individuals who are required to comply with the proposed amendment. 
Comments on the proposal may be submitted to Karey W. Barton, Manager, Tax 
Policy Division, P.O. Box 13528, Austin, Texas 78711. 
This amendment is proposed 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 acts by the 75th Legislature, 1997, amending the Local 
Government Code. 

sec.3.251.Adopting or Abolishing County Tax.
(a) General. 
(1) Under the provisions of the County Sales and Use Tax Act, any county not in 
a metropolitan transit authority (MTA) formed under <nl> the Transportation 
Code, Chapters 451 or 452<ol>[Texas Civil Statutes, Articles 1118x or 1118y], 
may, by a majority vote of the qualified voters of said county voting at an 
election held for that purpose, adopt or abolish a county sales and use tax in 
accordance with the provisions of the County Sales and Use Tax Act. An authority 
is not considered to be located in any county in which fewer than 250 persons 
are both residents of the authority and the county. If adopted, the county tax 
must be used to reduce the county property tax rate. 
(2) (No change.)
(b)-(d) (No change.)
<nl>(e)<ol> <nl> Sports and community venue project. In the event that an 
election to impose a sales and use tax for a sports and community venue project 
under Local Government Code, Chapter 334 or Chapter 335, increases a county tax 
rate, the notification requirements, effective dates, and contested election 
provisions in subsections (b), (c), and (d) of this section shall apply. <ol>
<nl>(f)<ol>[(e)] Telecommunications services. Telecommunications services are 
exempt from county sales tax, but the exemption may be repealed on certain 
telecommunications services. See sec.3.344 of this title (relating to 
Telecommunications Services). 
(1) The commissioners court of a county that has imposed the county sales tax 
may by a majority vote of the commissioners court repeal the exemption on 
telecommunications services. The county judge must forward to the comptroller by 
United States registered or certified mail a copy of the order repealing the 
exemption. Upon receipt by the comptroller of notification, one whole calendar 
quarter shall elapse before county tax applies to telecommunications services. 
The following illustrates the effective date of adoption or abolition.
Figure: 34 TAC sec.3.251<nl>(f)(1)<ol> [(e)(1)]
(2) The commissioners court of a county may exempt telecommunications services 
from county tax in the same manner in which the tax was imposed.
(3) The county sales tax exemption on interstate long-distance 
telecommunications services may not be repealed. Notwithstanding any action on 
the part of the governing body of a county, charges for interstate long-distance 
telecommunications service will be exempt from county sales and use tax.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on February 6, 1998.
TRD-9801743
Martin Cherry
Chief, General Law
Comptroller of Public Accounts
Earliest possible date of adoption: March 22, 1998
For further information, please call: (512) 463-4062

SUBCHAPTER O.State Sales and Use Tax
34 TAC sec.3.285
The Comptroller of Public Accounts proposes an amendment to sec.3.285, 
concerning resale certificate; sales for resale. The Tax Code was amended 
effective October 1, 1997, by adding sec.151.054(f) as a clarification. The 
amendment clarifies that a retailer is liable for sales tax on the original 
purchase price of a taxable item if the retailer purchases the taxable item tax 
free for resale and then uses the taxable item as a trade-in on the purchase of 
another taxable item. 
Mike Reissig, chief revenue estimator, has determined that for the first five-
year period the amendment will be in effect there will be no significant revenue 
impact on the state or local government. 
Mr. Reissig also has determined that for each year of the first five years the 
rule is in effect the public will benefit by the amended rule reflecting state 
law, thereby making the rule easier to read and interpret. The rule is adopted 
under the Tax Code, Title 2, and does not require a statement of fiscal 
implications for small businesses. There is no significant anticipated economic 
cost to individuals who are required to comply with the proposed amendment. 
Comments on the proposal may be submitted to Karey W. Barton, Manager, Tax 
Policy Division, P.O. Box 13528, Austin, Texas 78711. 
This amendment is proposed 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 acts of the 75th Legislature, 1997, amending the 
Tax Code, sec.151.054. 

sec.3.285.Resale Certificate; Sales for Resale.
(a)-(d) (No change.)
(e) Improper use of items purchased for resale. 
(1)-(5) (No change.)
<nl>(6)<ol> <nl>A purchaser who gives a resale certificate for the purchase of a 
taxable item is liable for sales tax if the purchaser uses the taxable item as a 
trade-in on the purchase of another taxable item. Tax must be paid on the 
original purchase price of the taxable item used as a trade-in. <ol> 
(f)-(h) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on February 6, 1998.
TRD-9801746
Martin Cherry
Chief, General Law
Comptroller of Public Accounts
Earliest possible date of adoption: March 22, 1998
For further information, please call: (512) 463-4062

34 TAC sec.3.298
The Comptroller of Public Accounts proposes an amendment to sec.3.298, 
concerning amusement services. The Tax Code was amended effective October 1, 
1997, to add sec.151.432, concerning the deduction of tax on a ticket or 
admission document to an amusement service. The amendment allows resellers of 
tickets or admission documents to amusement services to deduct from reported 
taxable sales the adjusted value of tickets purchased from non-permitted 
purchasers provided the tickets or admission documents had the tax included.
Mike Reissig, chief revenue estimator, has determined that for the first five-
year period the rule will be in effect there will be no significant revenue 
impact on the state or local government. 
Mr. Reissig also has determined that for each year of the first five years the 
rule is in effect the public will benefit by the amended rule reflecting state 
law, thereby making the rule easier to read and interpret. The rule is adopted 
under the Tax Code, Title 2, and does not require a statement of fiscal 
implications for small businesses. There is no significant anticipated economic 
cost to individuals who are required to comply with the proposed amendment. 
Comments on the proposal may be submitted to Karey W. Barton, Manager, Tax 
Policy Division, P.O. Box 13528, Austin, Texas 78711. 
This amendment is proposed 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 acts by the 75th Legislature, 1997, amending the Tax 
Code by adding sec.151.432, effective October 1, 1997.

sec.3.298.Amusement Services.
(a)-(e) (No change.)
(f) Taxable item sold or transferred with amusement service.
(1)-(4) (No change.)
<nl>(5)<ol> <nl>A reseller of a ticket or admission document to an amusement 
service may deduct from taxable sales reported the "adjusted value" of the 
ticket or admission document purchased for resale from a non-permitted purchaser 
of the ticket or admission document. The "adjusted value" is the face value of 
the ticket or admission document, less the included sales tax. A reseller is 
allowed the deduction from taxable sales when filing a sales tax report if all 
of the following criteria is met: <ol>
<nl>(A)<ol> <nl>the sales tax was paid by the purchaser and the purchaser does 
not hold a Texas Sales and Use Tax Permit;<ol> 
<nl>(B)<ol> <nl>the language on the ticket or admission document purchased for 
resale states that all taxes have been included in the price of the ticket or 
admission document; <ol>
<nl>(C)<ol> <nl>the ticket or admission document for which a deduction is 
claimed was not purchased tax-free by use of a resale or exemption certificate; 
and <ol> 
<nl>(D)<ol> <nl>the ticket or admission document is actually resold. <ol>
(g)-(i) (No change.)
(j) Records. Every seller of admissions to amusement services is responsible for 
keeping accurate records of all sales and purchases. See sec.3.281 of this title 
(relating to Records Required; Information Required). Every seller of admissions 
to amusement services must hold a sales tax permit and must file reports as 
required by sec.3.286 of this title (relating to Seller's and Purchaser's 
Responsibilities). <nl>A reseller of a ticket or admission document to an 
amusement service that is deducting the "adjusted value" of the ticket or 
admission document purchased for resale from a non-permitted purchaser, as 
provided in subsection (f)(5) of this section, must have records verifying the 
deduction that include: <ol>
<nl>(1)<ol> <nl> the name and address of the non-permitted purchaser; <ol>
<nl>(2)<ol> <nl> the face value of any ticket or admission document purchased by 
a non-permitted purchaser; <ol>
<nl>(3)<ol> <nl> proof (such as a copy of the ticket or admission document) 
showing that sales tax is included in the price of the ticket or admission 
document; <ol>
<nl>(4)<ol> <nl> the sales of tickets or admission documents; and <ol>
<nl>(5)<ol> <nl> the remaining inventory of unsold tickets or admission 
documents.<ol> 
(k) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on February 6, 1998.
TRD-9801747
Martin Cherry
Chief, General Law
Comptroller of Public Accounts
Earliest possible date of adoption: March 22, 1998
For further information, please call: (512) 463-4062

34 TAC sec.3.329
The Comptroller of Public Accounts proposes an amendment to sec.3.329, 
concerning state sales and use tax refunds available to enterprise projects and 
to qualified businesses in enterprise zones. This rule is being amended as a 
result of the passage of Senate Bill 226, 75th Legislature, 1997, which provides 
for the creation of defense economic readjustment zones (areas impacted by 
reductions in federal-defense contracting) and the designation of defense 
readjustment projects by the Texas Department of Commerce. Businesses designated 
as projects are entitled to franchise tax and sales tax incentives. Subsection 
(d) of the proposed rule sets out the definitions pertaining to this subsection, 
refunds available, and requirements for filing for the refunds. The comptroller 
proposes to rename the rule, Enterprise Projects, Enterprise Zones, and Defense 
Readjustment Zones. 
Mike Reissig, chief revenue estimator, has determined that for the first five-
year period the amendment will be in effect there will be no significant revenue 
impact on the state or local government. 
Mr. Reissig also has determined that for each year of the first five years the 
rule is in effect the public will benefit by the amended rule reflecting state 
law, thereby making the rule easier to read and interpret. The rule is adopted 
under the Tax Code, Title 2, and does not require a statement of fiscal 
implications for small businesses. There is no significant anticipated economic 
cost to individuals who are required to comply with the proposed amendment. 
Comments on the proposal may be submitted to Karey W. Barton, Manager, Tax 
Policy Division, P.O. Box 13528, Austin, Texas 78711. 
This amendment is proposed 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.sec.151.429, 151.4291, and 151.431. 

sec.3.329.[State Sales and Use Tax Refunds Available to ]Enterprise 
Projects<nl>,<ol>[ and to Qualified Businesses in] Enterprise Zones<nl>, and 
Defense Readjustment Zones<ol>.
(a)-(c) (No change.)
<nl>(d)<ol> <nl> Defense economic readjustment zones<ol>.
<nl>(1)<ol> <nl>Definitions applicable to subsection (d) only: <ol>
<nl>(A)<ol> <nl> Defense readjustment project - A person designated by the Texas 
Department of Commerce as a defense readjustment project under the Government 
Code, Title 10, Subtitle G, Chapter 2310.<ol> 
<nl>(B)<ol> <nl> Qualified business - A person certified as a qualified business 
under Government Code, sec.2310.302. <ol> 
<nl>(C)<ol> <nl>Qualified employee - A person who: <ol>
<nl>(i)<ol> <nl>works for a qualified business; and <ol>
<nl>(ii)<ol> <nl> performs at least 50% of the person's service for the business 
in the readjustment zone. <ol>
<nl>(D)<ol> <nl>Readjustment zone - An area designated as a defense economic 
readjustment zone under the Government Code, Chapter 2310. <ol>
<nl>(2)<ol> <nl>Tax refunds for defense readjustment projects. <ol> 
<nl>(A)<ol> <nl>A defense readjustment project is eligible for a refund in the 
amount provided by this section of the state sales and use taxes imposed by this 
chapter on purchases of: <ol>
<nl>(i)<ol> <nl>equipment or machinery sold to a defense readjustment project 
for use in a readjustment zone; <ol>
<nl>(ii)<ol> <nl>building materials sold to a defense readjustment project for 
use in remodeling, rehabilitating, or constructing a structure in a readjustment 
zone; <ol>
<nl>(iii)<ol> <nl> labor for remodeling, rehabilitating, or constructing a 
structure, not qualifying as a new construction, by a defense readjustment 
project in a readjustment zone; and <ol>
<nl>(iv)<ol> <nl> electricity and natural gas purchased and consumed in the 
normal course of business in the readjustment zone. <ol>
<nl>(B)<ol> <nl> Subject to the limitations provided by subparagraph (C) of this 
paragraph, a defense readjustment project qualifies for a refund of taxes under 
this section of $2,500 for each new permanent job or job that has been retained 
by the defense readjustment project for a qualified employee. <ol> 
<nl>(C)<ol> <nl>The total amount of tax refund that a defense readjustment 
project may apply for in a state fiscal year may not exceed $250,000. If a 
defense readjustment project qualifies in a state fiscal year for a refund of 
taxes in an amount in excess of the limitation provided by this subsection, it 
may apply for a refund of those taxes in a subsequent year, subject to the 
$250,000 limitation for each year. However, a defense readjustment project may 
not apply for a refund under this section after the end of the state fiscal year 
immediately following the state fiscal year in which the defense readjustment 
project's designation as a defense readjustment project expires or is removed. 
The total amount that may be refunded to a defense readjustment project under 
this section may not exceed the amount determined by multiplying $250,000 by the 
number of state fiscal years during which the defense readjustment project 
created one or more jobs for qualified employees. <ol>
<nl>(D)<ol> <nl>Only qualified businesses that have been certified as eligible 
for a tax refund under this section by the Texas Department of Commerce to the 
comptroller and the Legislative Budget Board are entitled to the tax refund. 
<ol>
<nl>(E)<ol> <nl>To receive a state tax refund under this section, a defense 
readjustment project must apply to the comptroller for the refund. A refund 
request submitted to the comptroller must: <ol>
<nl>(i)<ol> <nl> be in writing in a format prescribed by the comptroller; <ol>
<nl>(ii)<ol> <nl>be accompanied by copies of the certification by the Texas 
Department of Commerce; <ol>
<nl>(iii)<ol> <nl> list each qualifying item purchased, the name of each seller, 
invoice or contract number, dollar amount of each purchase, and amount of state 
tax paid on each purchase. <ol>
<nl>(F)<ol> <nl>A defense readjustment project applying for a refund of state 
taxes under this subsection must retain records substantiating each claim for 
refund. The records must be verifiable by audit and include copies of invoices 
showing the item purchased, the date of purchase, amount of purchase, the amount 
of tax paid, and the identity of the seller. The records must also show that the 
qualifying taxable items purchased were for use within the zone. Employment 
records must also be kept verifying the number of new jobs created or retained. 
<ol>
<nl>(G)<ol> <nl> For possible local tax abatements, see the Government Code, 
sec.2310.405. <ol>
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on February 6, 1998.
TRD-9801742
Martin Cherry
Chief, General Law
Comptroller of Public Accounts
Earliest possible date of adoption: March 22, 1998
For further information, please call: (512) 463-4062

SUBCHAPTER P.Municipal Sales and Use Tax
34 TAC sec.3.372
The Comptroller of Public Accounts proposes an amendment to sec.3.372, 
concerning adopting, increasing, decreasing, or abolishing city tax. House Bill 
92, 75th Legislature, 1997, amended the Local Government Code effective 
September 1, 1997, by adding Chapter 334 and Chapter 335 concerning sports and 
community venue projects and districts. The amendment explains that the 
notification requirements, effective dates, and contested election provisions in 
sec.3.372 apply to an election to impose sales and use tax for a sports and 
community venue project that increases a city tax rate or that reduces a tax 
rate for industrial development to allow the imposition of the tax for the 
sports and community venue project within the 2.0% cap on local taxes. 
The amendment also replaces all references to Texas Civil Statutes, Articles 
1118x, 1118y, or 1118z with references to the Transportation Code, Chapters 451, 
452, or 453. The provisions in Articles 1118x, 1118y, and 1118z have been 
recodified in the Transportation Code. 
Mike Reissig, chief revenue estimator, has determined that for the first five-
year period the amendment will be in effect there will be no significant revenue 
impact on the state or local government. 
Mr. Reissig also has determined that for each year of the first five years the 
rule is in effect the public will benefit by the amended rule reflecting state 
law, thereby making the rule easier to read and interpret. The rule is adopted 
under the Tax Code, Title 2, and does not require a statement of fiscal 
implications for small businesses. There is no significant anticipated economic 
cost to individuals who are required to comply with the proposed amendment. 
Comments on the proposal may be submitted to Karey W. Barton, Manager, Tax 
Policy Division, P.O. Box 13528, Austin, Texas 78711. 
This amendment is proposed 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 acts by the 75th Legislature, 1997, amending the Local 
Government Code. 

sec.3.372.Adopting, Increasing, Decreasing, or Abolishing City Tax.
(a) Definitions. The following words and terms, when used in this section, shall 
have the following meanings, unless the context clearly indicates otherwise. 
(1) (No change.)
<nl>(2)<ol> <nl>Sports and community venue project-A venue and related 
infrastructure that is planned, acquired, established, developed, constructed, 
or renovated under the Local Government Code, Chapter 334, or by a sports and 
community district created under the Local Government Code, Chapter 335. <ol>
<nl>(3)<ol>[(2)] Transit authority-Any rapid transit authority, regional 
transportation authority, or city transit department formed under <nl>the 
Transportation Code, Chapters 451, 452, or 453<ol>[Texas Civil Statutes, 
Articles 1118x, 1118y, or 1118z], and designated as a taxing entity under the 
Tax Code, sec.322.002. 
(b) General. Any city may, by a majority vote of the qualified voters of that 
city voting at an election held for that purpose, adopt or abolish a local sales 
and use tax in accordance with the provisions of the Local Sales and Use Tax Act 
and the Development Corporation Act of 1979. 
(1) (No change.)
(2) An additional tax rate of one-eighth, one-quarter, three-eighths, or one-
half of 1.0% may be imposed, increased, reduced, or repealed on the receipts 
from the sale at retail of all taxable items. This tax must be used to reduce 
the property tax rate if the city has imposed a property tax. This additional 
tax may not be imposed if the city: 
(A) (No change.)
(B) is in a county that includes territory within the boundaries of a transit 
authority created under <nl>the Transportation Code, Chapter 452<ol>[Texas Civil 
Statutes, Article 1118y], by a principal city with a population of more than 
800,000 unless: 
(i)-(iii) (No change.)
(C) imposes city transit department sales tax under <nl> the Transportation 
Code, Chapter 453<ol>[Article 1118z]. 
(3)-(4) (No change.)
(c)-(f) (No change.)
<nl>(g)<ol> <nl>Sports and community venue project. In the event that an 
election to impose a sales and use tax for a sports and community venue project 
increases a city tax rate or reduces a tax rate for industrial development to 
allow the imposition of tax for a sports and community venue project within the 
2.0% cap on local taxes, the notification requirements, effective dates, and 
contested election provisions in subsections (c), (d)(1), and (e) of this 
section shall apply. <ol>
<nl>(h)<ol>[(g)] Telecommunications services. Telecommunications services are 
exempt from city sales tax. However, the city sales tax exemption may be 
repealed on certain telecommunications services. See sec.3.344 of this title 
(relating to Telecommunications Services).
(1) The governing body of a local tax city may adopt by a majority vote of the 
governing body an ordinance repealing the exemption on telecommunications 
services. The city secretary must forward to the comptroller by United States 
registered or certified mail a copy of the ordinance. Upon receipt by the 
comptroller of notification, one whole calendar quarter shall elapse before 
local tax applies to telecommunications services. See subsection (d)(1) of this 
section for effective dates. 
(2) The governing body of a local tax city may exempt telecommunications 
services from local tax in the same manner in which the exemption was repealed. 
(3) The city sales tax exemption on interstate long-distance telecommunications 
services may not be repealed. Notwithstanding any action on the part of the 
governing body of a local tax city, charges for interstate long-distance 
telecommunications services will be exempt from city sales and use tax. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on February 6, 1998.
TRD-9801744
Martin Cherry
Chief, General Law
Comptroller of Public Accounts
Earliest possible date of adoption: March 22, 1998
For further information, please call: (512) 463-4062

SUBCHAPTER R.Transit Sales and Use Tax
34 TAC sec.3.422
The Comptroller of Public Accounts proposes an amendment to sec.3.422, 
concerning adopting, increasing, decreasing, or abolishing transit (MTA) tax. 
House Bill 92, 75th Legislature, 1997, amended the Local Government Code 
effective September 1, 1997, by adding Chapter 334 and Chapter 335 concerning 
sports and community venue projects and districts. The amendment explains that 
the notification requirements, effective dates, and contested election 
provisions in sec.3.422 apply to an election to impose sales and use tax for a 
sports and community venue project that reduces a transit tax rate. 
The amendment also replaces all references to Texas Civil Statutes, Articles 
1118x, 1118y, or 1118z with references to the Transportation Code, Chapters 451, 
452, or 453. The provisions in Articles 1118x, 1118y, and 1118z have been 
recodified in the Transportation Code. 
Mike Reissig, chief revenue estimator, has determined that for the first five-
year period the amendment will be in effect there will be no significant revenue 
impact on the state or local government. 
Mr. Reissig also has determined that for each year of the first five years the 
rule is in effect the public will benefit by the amended rule reflecting state 
law, thereby making the rule easier to read and interpret. The rule is adopted 
under the Tax Code, Title 2, and does not require a statement of fiscal 
implications for small businesses. There is no significant anticipated economic 
cost to individuals who are required to comply with the proposed amendment. 
Comments on the proposal may be submitted to Karey W. Barton, Manager, Tax 
Policy Division, P.O. Box 13528, Austin, Texas 78711. 
This amendment is proposed 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 acts by the 75th Legislature, 1997, amending the Local 
Government Code. 

sec.3.422.Adopting, Increasing, Decreasing, or Abolishing Transit (MTA) Tax.
(a) Definitions. The following words and terms, when used in this section, shall 
have the following meanings, unless the context clearly indicates otherwise. 
(1) Transit authority-Any rapid transit authority, regional transportation 
authority, or city transit department formed under <nl>the Transportation Code, 
Chapters 451, 452, or 453<ol>[Texas Civil Statutes, Articles 1118x, 1118y, or 
1118z], and designated as a taxing entity under the Tax Code, sec.322.002. 
(2) City transit department (CTD)-A transit system created under <nl>the 
Transportation Code, Chapter 453<ol>[Texas Civil Statutes, Article 1118z], and 
operated by an incorporated city or town with a population of 56,000 or more. 
<nl>(3)<ol> <nl> Sports and community venue project-A venue and related 
infrastructure that is planned, acquired, established, developed, constructed, 
or renovated under the Local Government Code, Chapter 334, or by a sports and 
community district created under the Local Government Code, Chapter 335. <ol>
(b)-(e) (No change.) 
(f) Tax rate change. 
(1) Any election for approval of a tax increase must conform to the requirements 
prescribed in subsection (c) of this section for elections and notification. The 
transit authority may, by a board order, decrease the tax rate provided the 
presiding officer of the board files a certified copy of the order with the 
<nl>Texas Department of Transportation<ol> [State Department of Highways and 
Public Transportation] and the Comptroller of Public Accounts. 
(2) (No change.) 
(g) Contested election. 
(1) If the validity of any election held under the provisions of <nl>the 
Transportation Code<ol>[Texas Civil Statutes] authorizing the authority, or the 
result of the election based on the returns is contested, the election contest 
must be filed and tried as provided in the Election Code of the State of Texas. 
The contestant must notify the comptroller by United States registered mail or 
certified mail within 10 days after filing the contest by mailing a copy of the 
notice of contest to the comptroller showing the style of the contest, the date 
filed, the case number, and the court in which the case is pending. No contest 
may be heard unless the comptroller is timely notified as provided in this 
section. 
(2) (No change.)
<nl>(h)<ol> <nl>Sports and community venue project. In the event that an 
election to impose a sales and use tax for a sports and community venue project 
either reduces the transit tax rate or withdraws a city from a transit 
authority, the notification requirements, effective date, and contested election 
provisions in subsections (c), (e), and (g) of this section shall apply. <ol>
<nl>(i)<ol>[(h)] Telecommunications services. See sec.3.344 of this title 
(relating to Telecommunications Services).
(1) The board of a transit authority may adopt by a majority vote of the board 
an order repealing the exemption on telecommunications services. The board 
chairman or secretary must forward to the comptroller by United States 
registered or certified mail a copy of the ordinance. Upon receipt by the 
comptroller of notification, one whole calendar quarter shall elapse before 
transit tax applies to telecommunications services. The adoption is effective on 
the first day of the next calendar quarter following the elapsed calendar 
quarter. 
(2) The board of the authority may exempt telecommunications services from 
transit tax in the same manner in which the exemption was repealed.
(3) The transit sales tax exemption on interstate long-distance 
telecommunications services may not be repealed. Notwithstanding any action on 
the part of the board of an authority, charges for interstate long-distance 
telecommunications services will be exempt from transit sales and use tax.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on February 6, 1998.
TRD-9801745
Martin Cherry
Chief, General Law
Comptroller of Public Accounts
Earliest possible date of adoption: March 22, 1998
For further information, please call: (512) 463-4062

TITLE 40. SOCIAL SERVICES AND ASSISTANCE
PART I. Texas Department of Human Services
CHAPTER 15.Medicaid Eligibility
SUBCHAPTER G.Application for Medicaid
40 TAC 15.610
The Texas Department of Human Services (DHS) proposes to amend sec.15.610, 
concerning Medicaid coverage, in its Medicaid Eligibility chapter. The purpose 
of the amendment is that for certified SSI clients, Medicaid coverage begins the 
month prior to the first month of SSI payment and is available for the two 
preceding months if the client meets all criteria for that period.
Eric M. Bost, commissioner, has determined that for the first five-year period 
the proposed amendment will be in effect there will be fiscal implications for 
state or local governments as a result of enforcing or administering the 
amendment. The effect on state government for the first five-year period the 
amendment will be in effect is an estimated additional cost of $9,337,470 for 
fiscal year 1998; $9,974,763 for fiscal year 1999; $10,491,145 for fiscal year 
2000; $11,044,206 for fiscal year 2001; and $11,627,309 for fiscal year 2002, 
100% state funds to be paid by the Texas Department of Health. There will be no 
fiscal implications for local government. 
Mr. Bost also has determined that for each year of the first five years the 
amendment is in effect the public benefit anticipated as a result of enforcing 
the amendment will be that there will be no gap in Medicaid coverage for 
certified SSI clients who are also eligible for retroactive coverage. There will 
be no effect on small businesses as a result of enforcing or administering the 
amendment. There is no anticipated economic cost to persons who are required to 
comply with the proposed amendment. 
Questions about the content of this proposal may be directed to Judy Coker at 
(512) 438-3227 in DHS's Long-Term Care section. Written comments on the proposal 
may be submitted to Supervisor, Rules and Handbooks Unit-026, Texas Department 
of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030, within 30 
days of publication in the Texas Register.
The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 
and 32, which authorizes the department to administer public and medical 
assistance programs and under Texas Government Code sec.531.021, which provides 
the Health and Human Services Commission with the authority to administer 
federal medical assistance funds.
The amendment implements sec.sec.22.001-22.030 and 32.001-32.042 of the Human 
Resources Code. 

sec.15.610. Medicaid Coverage. 
(a)-(b) (No change.) 
(c) <nl>Retroactive<ol> [Three-months prior] coverage. <nl>For certified SSI 
clients, Medicaid coverage automatically begins with the month prior to the 
first month of SSI payment and is also available for the two preceding months if 
the individual meets all Medicaid eligibility requirements for those two months. 
For other clients, the<ol> [The] three months considered in determining 
eligibility are those months immediately before the month in which the 
individual <nl>filed a denied application for SSI,<ol> filed a formal 
application for [SSI or] MAO, transferred from a limited Medicaid program such 
as QMB, or the three months before the month an application is received from a 
decedent's agent. The department considers as potentially eligible for 
retroactive Medicaid coverage the following individuals: 
(1)-(3) (No change.) 
(d) SSI-MAO eligibility requirements. 
(1) General requirements. Although the applicant need not be currently eligible, 
he must prove that SSI-MAO requirements were met in the month of requested 
coverage. Except for 1929(b) clients, a client eligible for <nl>retroactive<ol> 
[three months prior] coverage receives a medical care identification for the 
<nl>appropriate<ol> [retroactive] period. He presents this information to 
providers so that claims can be filed within 90 days of the Medicaid decision. 
To meet requirements, the individual must have been 
(A)-(E) (No change.) 
(2) Prior coverage for SSI applicants. The SSI client may apply for retroactive 
Medicaid coverage. To apply for retroactive medical coverage, the client must 
complete both the application form, which is based on current circumstances, and 
the application form attachment, which is based on circumstances during the 
three months before application for SSI. An SSI client who claims unpaid or 
reimbursable medical expenses incurred within <nl> the retroactive period<ol> 
[three months before the date of application] receives a computer-generated 
notice of potential eligibility. He must contact the local department office for 
his eligibility to be determined. The department determines his eligibility 
accord- ing to SSI program criteria. An individual may be eligible for more than 
one <nl>retroactive<ol> [three-month prior] period if he applies for SSI more 
than once. Determination of eligibility on a month-to-month basis may result in 
nonsequential periods of eligibility. The department notifies the client about 
the eligibility determination decision and sends him a medical identification 
card for his period of retroactive eligibility. 
(3)-(4) (No change.) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on February 6, 1998.
TRD-9801692
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: March 22, 1998
For further information, please call: (512) 438-3765