ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 1. ADMINISTRATION PART III. Office of the Attorney General CHAPTER 51. State Employees--Workers' Compensation 1 TAC Chapter 51 (House Bill 2133, 75th Legislature abolished the Workers' Compensation Division of the Office of the Attorney General effective August 31, 1997, and created the State Office of Risk Management effective September 1, 1997. The administrative rules for the State Employees Workers' Compensation Program, 1 TAC Chapter 51, are being transferred to the State Office of Risk Management, 28 TAC Chapter 251.) (The Texas Register is administratively transferring the following rules listed in the conversion chart published in this issue under the Tables and Graphics section.) Figure: 28 TAC Chapter 251 PART X. Department of Information Resources CHAPTER 201. Planning and Management of Information Resources Technologies 1 TAC sec.201.5 The Department of Information Resources adopts an amendment to sec.201.5, concerning agency planning, with changes to the proposed text as published in the February 27, 1998, issue of the Texas Register (23 TexReg 1756). The effect of the amendment is to revise the due date for the department to distribute instructions for agency strategic plans for information resources management to agencies; revise the due date for agencies to submit agency strategic plans for information resources management to the department; revise the deadline by which the department must review and approve or disapprove agency strategic plans; establish a due date for amendments to biennial operating plans that reflect significant new or changed technology initiatives in agencies' legislative appropriations requests; and make other changes to conform the rule to current provisions in the Information Resources Management Act (Texas Government Code Chapter 2054). The department received one comment regarding the proposed rule. The comment suggested that the department should publish instructions for preparation of agency strategic plans for information resources at least 120 days before the date such plans must be submitted to the department. The rule as proposed had specified that the department would publish instructions at least 60 days before the due date for submission of the plans; see subsection (a)(1)(C) of this section. The comment stated that the additional time was necessary to allow adequate time for the Health and Human Services Commission to review the plan prior to its submission to the department. The department agrees that additional time may be necessary under these circumstances, but disagrees that 120 days is necessary. The department has therefore modified the language of the rule to require the department to publish its instructions at least 90 days before the date the agency strategic plans must be submitted to the department. The comment also indicated that the language contained in subsection (c)(1)(B) of this section was confusing and should be clarified. The department agrees with this comment and has therefore modified the language of this subsection, which pertains to circumstances in which a biennial operating plan is not required to be amended. Names of groups or associations making comments for and against the rule: For: Texas Department of Human Services Against: None The amendment is adopted pursuant to the provisions of Texas Government Code sec.2054.095(d), sec.2054.097(a), and sec.2054.100(c), which authorize the department to adopt rules as necessary to carry out its responsibilities described in those portions of the Information Resources Management Act. sec.201.5. Agency Planning. (a) Agency strategic plans. (1) Submittal procedures. (A)-(B) (No change.) (C) The format and content of the agency strategic plan must comply with paragraph (2) of this subsection, and with instructions published by the department and distributed to each state agency at least 90 days before the date the plan is required to be submitted to the department. These instructions are adopted by reference. Copies may be obtained in person or in writing at the Department of Information Resources, P.O. Box 13564, Austin, Texas 78711. The instructions may also be obtained electronically via the department's Internet web page at http://www.dir.state.tx.us/. (D) Each agency must submit the agency strategic plan to the department on the same date that the strategic plan for operations required by Texas Government Code Chapter 2056 is scheduled to be submitted to the Legislative Budget Board and the Governor's Office of Budget and Planning or by July 1 of each even- numbered year, whichever is earlier. (2) Contents. Each agency strategic plan must be consistent with the State Strategic Plan for Information Resources Management and must include: (A)-(D) (No change.) (E) a statement of the strategic objectives of the agency relating to information resources management for the next five fiscal years, beginning with the fiscal year in which the plan is submitted, with a description of how those objectives help achieve the agency's programs and goals and support the goals and policies of the state strategic plan; and (F) (No change.) (3) Review procedures. (A) (No change.) (B) The department will review and approve or disapprove each agency strategic plan in writing not later than the 90th calendar day after the date the department receives the plan. If the department disapproves an agency's plan, it shall notify the agency's information resources manager and executive director in writing of the reasons for disapproval. The agency may appeal the department's disapproval at the next regularly scheduled board meeting. (b) Biennial operating plans. (1) Submittal procedures. (A) (No change.) (B) Format of the biennial operating plan and any amendments must comply with instructions, based on paragraph (2) of this subsection, published by the department and distributed to each state agency. (C) The information resources manager or the agency head must sign the biennial operating plan. (D) (No change.) (E) An agency may request an extension of the deadline for submitting its biennial operating plan. The request should describe the agency's need for additional time, and must be received by the department on or before the agency's due date. (2) Contents. An agency's biennial operating plan must include: (A) (No change.) (B) information in the format specified by the department in the operating plan instructions. These instructions are adopted by reference. Copies may be obtained in person, or by writing to the Department of Information Resources, P.O. Box 13564, Austin, Texas 78711. The instructions also be obtained electronically via the department's Internet web page at http://www.dir.state.tx.us/. (3) Review procedures. (A) The department will evaluate biennial operating plans: (i) for consistency with the General Appropriations Act and other legislation; (ii)-(vii) (No change.) (B) (No change.) (C) The department may not approve an agency's biennial operating plan unless the agency has submitted, and the department has approved, a current agency strategic plan for information resources management. (D) (No change.) (c) Plan amendments. (1) Submittal procedures. (A) A state agency shall amend its strategic plan and/or biennial operating plan when necessary during a biennium. At a minimum, an agency shall amend its biennial operating plan to reflect significant new or changed information resources initiatives or information resources technologies initiatives contained in the agency's legislative appropriation request. Such amendment shall be submitted to the department not later than the date the agency is required to submit its legislative appropriations request to the Legislative Budget Board. Additional information on when to submit an amendment shall be included in the instructions described in of subsection (b)(2)(B) of this section. (B) A state agency that does not have any significant new or changed information resources initiatives or information resources technologies initiatives is not required to amend its biennial operating plan, but shall send written notification to the department stating that an amendment is not required and the reasons why an amendment is not required. Such written notification shall be submitted to the department not later than the date the agency is required to submit its legislative appropriation request to the Legislative Budget Board. (C) A state agency must submit proposed plan amendments to the department for approval. (2) Review procedures. The department will review and approve or disapprove all or part of each proposed plan amendment no later than 30 working days after it is received. Instructions for the format and content of plan amendments and criteria for review of these amendments are included in the instructions described in subsection (b)(2)(B) of this section. (d) Appeal procedures. (1) Submittal procedures. A state agency that disagrees with the department's disapproval of a plan, part of a plan, or plan amendment, may submit a written request to the department for special review no later than 30 days after notification of department disapproval. (2) (No change.) (e) Implementation of approved plans. (1) (No change.) (2) The department will identify the additional information required under this subsection with reasonable specificity at the time it completes its evaluation of a plan. Any stipulations or conditions applied to plan approval must be satisfied prior to implementing the affected portions of the plan. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on April 9, 1998. TRD-9805035 C.J. Brandt, Jr. General Counsel Department of Information Resources Effective date: April 29, 1998 Proposal publication date: February 27, 1998 For further information, please call: (512) 475-2153 TITLE 16. ECONOMIC REGULATION PART VIII. Texas Racing Commission CHAPTER 303. General Provisions SUBCHAPTER A. Organization of the Commission 16 TAC sec.303.4 The Texas Racing Commission adopts an amendment to sec.303.4, concerning Commission meetings, without changes to the proposed text as published in the January 30, 1998, issue of the Texas Register (23 TexReg 701). The amendment is adopted to ensure that that the Commission's rules are consistent with Texas Civil Statutes, Article 179e, and that the public has ample notice and opportunity to be involved in the Commission's policy making and rulemaking procedures. No comments were received regarding the amendment. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.2.11, which requires the Commission to adopt rules providing the public with an opportunity to appear before the Commission and address the Commission; and sec.3.02, which requires the Commission to post notice of a meeting involving rulemaking at each racetrack. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on April 6, 1998. TRD-9804767 Paula C. Flowerday Executive Secretary Texas Racing Commission Effective date: April 26, 1998 Proposal publication date: January 30, 1998 For further information, please call: (512) 833-6699 CHAPTER 305. Licenses for Pari-mutuel Racing SUBCHAPTER D. Suspension and Revocation of Licenses 16 TAC sec.305.244 The Texas Racing Commission adopts an amendment to sec.305.244, concerning failure to disclose, without changes to the proposed text as published in the January 30, 1998, issue of the Texas Register (23 TexReg 702). The amendment is adopted to ensure the Commission's rules are consistent with the applicable state law and that the state's licensed racetracks will be owned and operated in accordance with the law. The Texas Racing Act was revised by sunset legislation effective September 1, 1997, and in that legislation, the Commission is authorized to revoke, suspend, or deny a racetrack license if the applicant has failed to fully disclose the true owners of all interests in the racetrack facility. No comments were received regarding the proposal. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.06 which authorizes the Commission to adopt rules regarding racetrack license applications. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on April 6, 1998. TRD-9804766 Paula C. Flowerday Executive Secretary Texas Racing Commission Effective date: April 26, 1998 Proposal publication date: January 30, 1998 For further information, please call: (512) 833-6699 SUBCHAPTER F. Other Licenses 16 TAC sec.305.301 The Texas Racing Commission adopts an amendment to sec.305.301, concerning interim licenses to conduct race meetings, without changes to the proposed text as published in the December 12, 1997, issue of the Texas Register (22 TexReg 12202). The amendment is adopted to ensure that the Commission's rules are clear and easy to understand and that the Commission generates the necessary revenue to offset its regulatory costs. The amendment clarifies the types of debtholders who are eligible to apply for the interim license. The amendment also clarifies the documents required to be submitted for an application for an interim license and the fees an applicant is required to pay for the license. No comments were received regarding the proposal. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.7.02, which authorizes the Commission to adopt various categories of licenses for persons who participate in pari-mutuel racing; and sec.7.05, which authorizes the Commission to set the amount of the license fees required for various categories of licenses. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on April 6, 1998. TRD-9804765 Paula C. Flowerday Executive Secretary Texas Racing Commission Effective date: April 26, 1998 Proposal publication date: January 30, 1998 For further information, please call: (512) 833-6699 CHAPTER 307. Practice and Procedure SUBCHAPTER D. Rulemaking 16 TAC sec.307.302 The Texas Racing Commission adopts an amendment to sec.307.302, concerning the Commission's rulemaking procedure, without changes to the proposed text as published in the January 30, 1998, issue of the Texas Register (23 TexReg 702). The amendment is adopted to ensure that the Commission's rules are consistent with applicable state law and that the racetracks and occupational licensees will have notice of the Commission's rulemaking processes. The Texas Racing Act was revised by sunset legislation effective September 1, 1997, and in that legislation, the Commission is required to distribute a copy of each proposed rule to each racetrack location. This amendment implements that requirement. No comments were received regarding the proposal. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act and which requires the posting of proposed rules at each racetrack location. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on April 6, 1998. TRD-9804764 Paula C. Flowerday Executive Secretary Texas Racing Commission Effective date: April 26, 1998 Proposal publication date: January 30, 1998 For further information, please call: (512) 833-6699 CHAPTER 309. Operation of Racetracks SUBCHAPTER A. General Provisions Division 2. Facilities and Equipment 16 TAC sec.309.18 The Texas Racing Commission adopts an amendment to sec.309.18, concerning first aid at pari-mutuel racetracks, without changes to the proposed text as published in the January 30, 1998, issue of the Texas Register (23 TexReg 703). The amendment is adopted to ensure that pari-mutuel racing will be safe for the patrons and participants without being overly burdensome to the racetracks. The amendment clarifies the requirements for first aid personnel and eliminates the requirement of having first aid personnel on the grounds of a racetrack when no live racing or exercising is occurring. No comments were received regarding the proposal. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.06, which authorizes the Commission to adopt rules on all matters relating to the operation of pari-mutuel racetracks. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on April 6, 1998. TRD-9804763 Paula C. Flowerday Executive Secretary Texas Racing Commission Effective date: April 26, 1998 Proposal publication date: January 30, 1998 For further information, please call: (512) 833-6699 CHAPTER 323. Disciplinary Action and Enforcement SUBCHAPTER A. General Provisions 16 TAC sec.323.2 The Texas Racing Commission adopts an amendment to sec.323.2, concerning complaints, without changes to the proposed text as published in the January 30, 1998, issue of the Texas Register (23 TexReg 704). The amendment is adopted to ensure that the public has notice of the process for complaining about the activities or operations of pari-mutuel racetracks. The Texas Racing Act was revised by sunset legislation effective September 1, 1997, and in that legislation, the Commission is required to establish methods by which racetrack patrons are notified of the name, mailing address, and telephone number for the commission for the purpose of directing complaints to the Commission. This amendment implements that requirement. No comments were received regarding the proposal. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the Commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.2.23, which requires the Commission to adopt rules which establish methods by which racetrack patrons are notified of the name, mailing address, and telephone number for the commission for the purpose of directing complaints to the Commission. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on April 6, 1998. TRD-9804762 Paula C. Flowerday Executive Secretary Texas Racing Commission Effective date: April 26, 1998 Proposal publication date: January 30, 1998 For further information, please call: (512) 833-6699 TITLE 25. HEALTH SERVICES PART II. Texas Department of Mental Health and Mental Retardation CHAPTER 409. Medicaid Programs SUBCHAPTER J. Reimbursement for Services in Institutions for Mental Diseases (IMD) 25 TAC sec.sec.409.373-409.375 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts amendments to sec.sec.409.373-409.375 of Chapter 409, Subchapter J, governing Reimbursement for Services in Institutions for Mental Diseases (IMD). The amendments to sec.sec.409.373-409.375 are adopted without changes to the proposed text as published in the January 23, 1998, issue of the Texas Register (23 TexReg 497). In accordance with the Federal Balanced Budget Act of 1997, the adopted amendments remove the requirement for a periodic inspection of care (IOC) in IMDs. Additionally, two minor revisions are made regarding the definitions of terms and the deletion of an unnecessary reference to an initial time period which was pertinent when the rule was initially promulgated. There was no oral or written testimony offered at a public hearing conducted on February 19, 1998. The department received no oral or written comment during the required 30-day public comment period. The amended sections are adopted under the Texas Health and Safety Code, sec.532.015(a), which provides TDMHMR with broad rulemaking authority; and Human Resource Code, Chapter 32, sec.32.021, and Government Code, Chapter 531, sec.531.021, which provide the Texas Health and Human Services Commission (THHSC) with the authority to administer federal medical assistance funds and administer the state's medical assistance program. Senate Bill 509 of the 74th Texas Legislature clarifies THHSC's authority to delegate the operation of all or part of a Medicaid program to a health and human service agency. THHSC has designated TDMHMR as the operating agency for the IMD program. The section affects Texas Human Resources Code, Chapter 32, Texas Government Code, Chapter 531, sec.531.021, and Texas Health and Safety Code, sec.532.015(a). This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on April 13, 1998. TRD-9805144 Charles M. Cooper Chairman, Texas MHMR Board Texas Department of Mental Health and Mental Retardation Effective date: May 3, 1998 Proposal publication date: January 23, 1998 For further information, please call: (512) 206-4516 PART VI. Statewide Health Coordinating Council CHAPTER 571. Health Planning and Resource Development 25 TAC sec.sec.571.2, 571.4, 571.5 The Statewide Health Coordinating Council (council) by majority vote on March 31, 1998, enters this order finally adopting amendments to sec.sec.571.2, 571.4, and 571.5, concerning conflict of interest, meetings, and committees, without changes to the proposed text as published in the February 27, 1998, issue of the Texas Register (23 TexReg 1894), and therefore the section will not be republished. In accordance with the Texas Health and Safety Code, Chapter 104, the composition of the council has been revised. The council adopts these amendments to reflect the new structure of the council. Section 571.2 defines "conflict of interest" as specified in the Government Code, sec.572.058. Section 571.4 provides for notification of the appointing authority if a member of the council is unable to discharge his or her duties as prescribed, defines the number for a quorum, and revises the number of members who can request a called meeting. Section 571.5 provides revised minimum sizes for the plan development committee, the legislative committee, and the nominating committee. No comments were received during the comment period. The amendments are adopted under the Health and Safety Code, sec.104.012 which provides the council with the authority to adopt rules concerning the development and implementation of the state health plan. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on April 13, 1998. TRD-9805111 Ben G. Raimer, M.D. Chair Statewide Health Coordinating Council Effective date: May 3, 1998 Proposal publication date: February 27, 1998 For further information, please call: (512) 458-7236 TITLE 28. INSURANCE PART II. Texas Workers' Compensation Commission CHAPTER 170. State Risk Management 28 TAC Chapter 170 (House Bill 2133, 75th Legislature abolished the Risk Management Division of the Texas Workers' Compensation Commission effective August 31, 1997, and created the State Office of Risk Management effective September 1, 1997. The administrative rules for the State Risk Management Program, 28 TAC Chapter 170, are being transferred to the State Office of Risk Management, 28 TAC Chapter 252.) (The Texas Register is administratively transferring the following rules listed in the conversion chart published in this issue under the Tables and Graphics section.) Figure: 28 TAC Chapter 251 PART IV. State Office of Risk Management 28 TAC Chapters 251-252 (House Bill 2133, 75th Legislature abolished the Workers' Compensation Division of the Office of the Attorney General and the Risk Management Division of the Texas Workers' Compensation Commission effective August 31, 1997, and merged the two to form the State Office of Risk Management effective September 1, 1997. The administrative rules for the the State Employees Workers' Compensation Program, 1 TAC Chapter 51, are being transferred to the State Office of Risk Management, 28 TAC Chapter 251. The administrative rules for the State Risk Management Program, 28 TAC Chapter 170, are being transferred to the State Office of Risk Management, 28 TAC Chapter 252.) (The Texas Register is administratively transferring the following rules listed in the conversion chart published in this issue under the Tables and Graphics section.) Figure: 28 TAC Chapter 251 TITLE 37. PUBLIC SAFETY AND CORRECTIONS PART VI. Texas Department of Criminal Justice CHAPTER 159. Special Programs 37 TAC sec.159.9 The Texas Department of Criminal Justice adopts new sec.159.9, concerning a memorandum of understanding between the Department and the Texas Commission on Law Enforcement Officer Standards and Education regarding firearms proficiency training for supervision officers, without changes to the proposed text as published in the February 13, 1998, issue of the Texas Register (23 TexReg 1267). House Bill 2909, passed by the 75th Legislature, requires the two agencies to enter into the agreement. The new section adopts by reference new 37 TAC sec.211.33 proposed by the Texas Commission on Law Enforcement Officer Standards and Education in the December 26, 1997, issue of the Texas Register (22 TexReg 12708). The Texas Department of Criminal Justice will require individual parole officers to bear the costs of training, certification, and equipment if the officer chooses to carry a weapon in the course of his or her duties. The Department will allow community supervision and corrections department (CSCD) directors, at their discretion, to use state funds to pay for community supervision officers (CSOs) firearms certification training and requalification firearms training. CSCDs may also use state funds to pay for ammunition used in those trainings, but CSOs will pay for all other ammunition, and the weapons they use in the line of duty. Local community supervision and corrections departments will decide independently as to whether the program will be allowed or required, see 37 TAC sec.163.34 adopted in the February 13, 1998, issue of the Texas Register (23 TexReg 1314). There are approximately 3,500 probation and community supervision officers in the state. It has been estimated by the Texas Commission on Law Enforcement Officer Standards and Education that an authorized firearms training program will cost between $750 and $1,200 and the Texas Commission on Law Enforcement Officer Standards and Education will charge $20 for issuance of a Firearms Proficiency Certificate. The adoption will enable adequate training and certification for supervision officers who choose to or are required to carry weapons in the course of their duties. No comments were received regarding adoption of the new section. The new section is adopted under sec.76.0051, Government Code, which authorizes supervision officers to carry weapons; sec.415.038, which requires TCLEOSE training for supervision officers; and sec.509.003, which provides general rulemaking authority for CJAD standards. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on April 6, 1998. TRD-9804779 Carl Reynolds General Counsel Texas Department of Criminal Justice Effective date: April 26, 1998 Proposal publication date: February 13, 1998 For further information, please call: (512) 463-9693 TITLE 40. SOCIAL SERVICES AND ASSISTANCE PART I. Texas Department of Human Services CHAPTER 90.Intermediate Care Facilities for Persons with Mental Retardation or a Related Condition The Texas Department of Human Services (DHS) adopts the repeal of sec.sec.90.142, 90.193, 90.211, 90.212, 90.301, 90.302, 90.303, 90.304, and 90.322; amendments to sec.sec.90.2, 90.3, 90.11, 90.12, 90.13, 90.14, 90.16, 90.17, 90.19, 90.20, 90.42, 90.60, 90.61, 90.65, 90.66, 90.68, 90.191, 90.192, 90.213, 90.217, 90.281, 90.282, 90.283, 90.287, 90.321, and 90.323; and new 90.211, 90.212, 90.324, and 90.325. The amendments to sec.sec.90.3, 90.42, 90.61, and 90.323, and new 90.211 and 90.212 are adopted with changes to the proposed text. The repeal of sec.sec.90.142, 90.193, 90.211, 90.212, 90.301, 90.302, 90.303, 90.304, and 90.322; amendments to sec.sec.90.2, 90.11, 90.12, 90.13, 90.14, 90.16, 90.17, 90.19, 90.20, 90.60, 90.65, 90.66, 90.68, 90.191, 90.192, 90.213, 90.217, 90.281, 90.282, 90.283, 90.287, and 90.321; and new 90.324, and 90.325 are adopted without changes to the proposed text published in the November 21, 1997, issue of the Texas Register (22 TexReg 11312), and the text will not be republished. Justification for the repeals, amendments, and new sections is that Intermediate Care Facilities for Persons with Mental Retardation (ICF-MR) providers will have licensing rules separate from nursing home providers and to provide facility investigators with guidelines on conducting abuse and neglect investigations. The repeals, amendments, and new sections will function by complying with recent state legislation that created a new licensing chapter in the Health and Safety Code, Chapter 252, and adding procedures to be used when conducting an investigation in a private ICF-MR/RC facility. The chapter provides for the development and enforcement of standards for services to individuals residing in ICFMR/RC facilities. During the public comment period, DHS received comments from Educare, Concept Six, the Private Providers Association of Texas (PPAT), and the Texas Council of Community Mental Health and Mental Retardation Centers, Inc. A summary of all the comments received and DHS's responses follow: Comment: All commenters stated that requiring at least one staff person per shift and on duty be certified in cardiopulmonary resuscitation (CPR) would be costly to the small provider. Response: The department does not concur. According to the Texas Department of Mental Health and Mental Retardation (TDMHMR), the current Medicaid rate covers five days of training, so that any training required by the rule is covered by the current Medicaid reimbursement rate. All ICFMR/RC providers participate in Medicaid. Also, it is important for the protection of the facility's residents that staff be trained in CPR. There have been several deaths in ICRMR/RC facilities due to the staff's inability to perform CPR. Comment: All commenters requested Subchapter D. General Requirements for Facility Construction, 40 TAC Section 90.61 (e) (5) be deleted or clarified. Providers contend that this law or regulation does not apply to them, as small ICFMR/RC facilities are not public accommodations or commercial facilities. Response: The department does not concur. The only change made to sec.90.61(e)(5) is not a substantive change. Providers must comply with all federal, state, and local laws. The state agency charged with administering the state Architectural Barriers Act (ABA), the Texas Department of Licensing and Regulation (TDLR), has determined that the ABA does apply to ICFMR/RC facilities. The TDLR utilizes the Texas Accessibility Standards (TAS) for the purposes of administering the state Architectural Barriers Act, Article 9102, Texas Civil Statutes. TAS Section 6.1, General, states that medical care facilities included in this section are those in which people receive physical or medical treatment or care and where persons may need assistance in responding to an emergency or where the period of stay may exceed 24 hours. Section 6.1(3) identifies ICFMR/RC facilities as one of the long term care facilities that fall under medical care facilities. In order for the department to change this rule, the Texas Department of Licensing and Regulation (TDLR) must amend their standards to meet the needs of the small ICFMR/RC facilities. Comment: Two commenters stated that the preamble stated there was no effect on small businesses and no anticipated economic cost to the provider. The requirement for CPR, the cost to facilities to be in compliance with ABA and abuse neglect investigator training indicate there will be an economic impact on the providers. Response: The department has determined that there is no fiscal impact on small businesses. According to the Texas Department of Mental Health and Mental Retardation, the current Medicaid reimbursement rate covers five days of training, so that the abuse and neglect investigator training and any CPR training required by the rule amendments is covered by the current Medicaid rate. All ICFMR/RC providers participate in Medicaid. Compliance with the state ABA is not a new requirement and is not controlled by the department. DHS has made several nonsubstantive changes to the proposed rule language. DHS has made a change to 90.3 to add the phrase "with at least a bachelor's degree" to the definition of "qualified mental retardation professional." In sec.90.42 DHS has included the current address of the Long-Term Care Regulatory office. Section sec.90.61(e)(5) was also changed to read, "The facility must meet all applicable provisions..." In sec.90.211 "an" replaces "a" to modify "individual" in the definition of "misappropriation of property." Section 90.212(d)(1)(E)(viii) now reads, "use of experts or consultants as needed." DHS changed sec.90.323(e)(2)(B)(i) to read, "be signed and dated within six months..." SUBCHAPTER A.Introduction 40 TAC sec.sec.90.2, 90.3 The amendments are adopted under the Health and Safety Code, Chapter 252, which provides the department with the authority to license intermediate care facilities serving persons with mental retardation or a related condition; and under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs. The amendments implement the Health and Safety Code, sec.sec.252.001 - 252.186, and the Human Resources Code, sec.sec.22.001 - 22.030. sec. 90.3.Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Individual subchapters may have definitions which are specific to the subchapter. Addition - The addition of floor space to a facility. Administrator - The administrator of a facility. Applicant - A person applying for a license under Health and Safety Code, Chapter 252. APA - The Administrative Procedure Act, Texas Government Code, sec.2001. Attendant personnel - All persons who are responsible for direct and non-nursing services to residents of a facility. (Nonattendant personnel are all persons who are not responsible for direct personal services to residents.) Attendant personnel come within the categories of: administration, dietitians, medical records, activities, housekeeping, laundry, and maintenance. Change of ownership - A change of 50% or more in the ownership of the business organization that is licensed to operate the facility, or a change in the federal tax payer identification number. Designee - A state agency or entity with which the department contracts to perform specific, identified duties related to the fulfillment of a responsibility prescribed by this chapter. Facility - A facility serving persons with mental retardation or related conditions licensed under this chapter as described in sec.90.2 of this title (relating to Scope) and required to be licensed under the Health and Safety Code, Chapter 252. Hearing - A contested case hearing held in accordance with the Administrative Procedure Act, Government Code, Chapter 2001, and the department's formal hearing procedures adopted in Chapter 79 of this title (relating to Legal Services). Immediate and serious threat - A situation in which there is a high probability that serious harm or injury to residents could occur at any time or has already occurred and may occur again if residents are not protected effectively from the harm or if the threat is not removed. Inspection - Any on-site visit to or survey of a facility by the Texas Department of Human Services for the purpose of inspection of care, licensing, monitoring, complaint investigation, architectural review, or similar purpose. Large facility - Facilities with 17 or more resident beds. Legal guardian- A person who is appointed guardian under sec.693 of the Probate Code. License - Approval from the Texas Department of Human Services to establish or operate a facility. Person with a disclosable interest - Any person who owns 5.0% interest in any corporation, partnership, or other business entity that is required to be licensed under Health and Safety Code, Chapter 252. A person with a disclosable interest does not include a bank, savings and loan, savings bank, trust company, building and loan association, credit union, individual loan and thrift company, investment banking firm, or insurance company unless such entity participates in the management of the facility. Qualified mental retardation professional - A person with at least a bachelor's degree who has at least one year of experience working with persons with mental retardation or related conditions. Qualified surveyor - A member of the survey team who is a qualified mental retardation professional. Small facilities - Facilities with 16 or fewer resident beds. Well-recognized church or religious denomination - An organization which has been granted a tax-exempt status as a religious association from the state or federal government. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on April 9, 1998. TRD-9804989 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: May 1, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 438-3765 SUBCHAPTER B.Application Procedures 40 TAC sec.sec.90.11-90.14, 90.16, 90.17, 90.19, 90.20 The amendments are adopted under the Health and Safety Code, Chapter 252, which provides the department with the authority to license intermediate care facilities serving persons with mental retardation or a related condition; and under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs. The amendments implement the Health and Safety Code, sec.sec.252.001 - 252.186, and the Human Resources Code, sec.sec.22.001 - 22.030. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on April 9, 1998. TRD-9804990 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: may 1, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 438-3765 SUBCHAPTER C.Standards for Licensure 40 TAC sec.90.42 The amendment is adopted under the Health and Safety Code, Chapter 252, which provides the department with the authority to license intermediate care facilities serving persons with mental retardation or a related condition; and under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs. The amendment implements the Health and Safety Code, sec.sec.252.001 - 252.186, and the Human Resources Code, sec.sec.22.001 - 22.030. sec.90.42.Standards for Facilities for Persons with Mental Retardation or Related Conditions. (a)-(b) (No change.) (c) Standards. Each facility serving persons with mental retardation or related conditions shall comply with regulations promulgated by the United States Department of Health and Human Services in Title 42, Code of Federal Regulations, Part 483, Subpart I, sec.sec.483.400-483.480, titled, "Conditions of Participation for Intermediate Care Facilities for the Mentally Retarded." (d) (No change.) (e) Additional requirements. (1) The facility must develop and implement policies and procedures regarding injuries, accidents, and unusual incidents which involve or affect residents. These policies and procedures must include the following provisions. (A) An investigation and report must be completed and maintained as a separate record which describes the circumstances of the injury, accident, or incident and its cause, the results of the investigation, and recommended actions. Serious injuries, accidents, or unusual incidents must be reported to the resident's responsible parties and to the department, as described in sec.90.212 of this title (relating to Incidents of Abuse and Neglect Investigated and Reported by Facilities to the Texas Department of Human Services (DHS)). (B) The provider or facility must conduct a criminal history check, as outlined in sec.90.321 of this title (relating to Investigation of Facility Employees), in compliance with the Health and Safety Code, Title 4, Chapter 250, which requires DHS to perform criminal history checks on persons employed by certain types of facilities. (2) In the area of cardiopulmonary resuscitation (CPR), at least one staff person per shift and on duty must be certified in CPR. (3) In the area of behavior management, seclusion of residents may not be used. Seclusion is defined as placement of a resident in a room without staff present from which egress is prevented by a locked door. (4) In the area of physical restraints, the following applies. (A) When physical restraints (mechanical and/or manual) are used as an integral part of an individual program plan that is intended to lead to less restrictive means of managing and eliminating the behavior for which the restraint is applied, a physician must participate on the interdisciplinary team that authorizes the use of restraint and must concur with the team's decision concerning its use. (B) When physical restraints are used as an emergency measure to protect the resident or others from injury, a physician must authorize its use or the extension of its use. (5) In the area of pharmacy services, the following applies. (A) All pharmacy services must comply with the Texas State Board of Pharmacy requirements, the Texas Pharmacy Act, and rules adopted thereunder, the Texas Controlled Substances Act, and Health and Safety Code, Chapter 483 (relating to Dangerous Drugs). (B) All medications must be ordered in writing by a physician, dentist, or podiatrist. Verbal orders may be taken only by a licensed nurse, pharmacist, or another physician, and must be immediately transcribed and signed by the individual taking the order. Verbal orders must be signed by the physician, dentist, or podiatrist within seven working days. (C) The facility, with input from the consultant pharmacist and physician, must develop and implement policies and procedures regarding automatic stop orders for medications. These procedures must be utilized when the order for a medication does not specify the number of doses to be given or the time for discontinuance or re- order. (6) Specialized nutrition support (delivery of parenteral nutrients and enteral feedings by nasogastric, gastrostomy, or jejunostomy tubes, etc.) must be given in accordance with physician's orders by a registered or licensed nurse. Proper technique must be utilized when giving nutritional support. (7) In the area of administration of medication, the following applies. (A) Medications may be administered only by physicians, licensed nursing personnel, permitted medication aides, or persons who are exempt from licensure or permit requirements pursuant to the Health and Safety Code, sec.242.1511. These persons must function in accordance with the memorandum of understanding (MOU) between DHS and the Board of Nurse Examiners. DHS adopts the MOU by reference and copies are available for review at DHS's Long-Term Care Regulatory, 701 West 51st Street, Austin, Texas 78714-9030. (i) The licensed or certified individual who removes the medication dose from the container in which it was dispensed must administer the dose. (ii) The individual who administers the medication must record the dose after it is administered and during the shift in which it was given. (B) Residents who have demonstrated the competency for self-administration of medications must have access to and maintain their own medications. They must have an individual storage space that permits them to store their medications under lock and key. (C) Residents may participate in a self-administration of medication habilitation training program if the interdisciplinary team determines that self-administration of medications is an appropriate objective. Residents participating in a self-administration of medication habilitation training program must have training in coordination with and as part of the resident's total active treatment program. The resident's training plan must be evaluated as necessary by a licensed nurse. The supervision and implementation of a self- administration of medication habilitation program may be conducted by nonlicensed personnel and is not limited to personnel who have completed an approved training program in medication administration. (D) A facility may maintain a supply of controlled substances in an emergency medication kit for a resident's emergency medication needs, as outlined under sec.sec.90.324 and 90.325 of this title (relating to Emergency Medication Kit and Controlled Substances). (8) In the area of communicable diseases, the facility must have written policies and procedures for the control of communicable diseases in employees and residents. When any reportable communicable disease becomes evident, the facility must report in accordance with Communicable Disease and Prevention Act, Health and Safety Code, Chapter 81, or as specified in 25 TAC sec.sec.97.1-97.13 (relating to Control of Communicable Diseases) and 25 TAC sec.sec.97.131-97.136 (relating to Sexually Transmitted Diseases) and in the publication titled, "Reportable Diseases in Texas," Publication 6-101a (Revised 1987). The local health authority should be contacted to assist the facility in determining the transmissibility of the disease and, in the case of employees, the ability of the employee to continue performing his duties. The facility must have written policies and procedures for infection control, which include implementation of universal precautions as recommended by the Centers for Disease Control (CDC). (9) In the area of water activities, the facility must assure the safety of all individuals who participate in facility-sponsored events. For the purpose of this section, a water activity is defined as an activity which occurs in or on water that is knee deep or deeper on the majority of individuals participating in the event. To assure the safety of all individuals who participate, the requirements in subparagraphs (A)-(F) apply. (A) The facility must develop a policy statement regarding the water sites utilized by the facility. Water sites include, but are not limited to, lakes, amusement parks, and pools. (B) A minimum of one staff person with demonstrated proficiency in cardiopulmonary resuscitation (CPR) must be on duty and at the site when individuals are involved in water activities. (C) A minimum of one person with demonstrated proficiency in water life saving skills must be on duty and at the site when activities take place in or on water that is deep enough to require swimming for life saving retrieval. This person must maintain supervision of the activity for its duration. (D) A sufficient number of staff or a combination of staff and volunteers must be available to meet the safety requirements of the group and/or specific individuals. (E) Each individual's program plan must address each person's needs for safety when participating in water activities including, but not necessarily limited to, medical conditions; physical disabilities and/or behavioral needs which could pose a threat to safety; the ability to follow directions and instructions pertaining to water safety; the ability to swim independently; and, when called for, special precautions. (F) If the interdisciplinary team recommends the use of a flotation device as a precaution for any individual to engage in water activities, it must be identified and precautions outlined in the individual program plan. The device must be approved by the United States Coast Guard or be a specialized therapy flotation device utilized in the individual's therapy program. (10) In the area of communication, a facility may not prohibit a resident or employee from communicating in the person's native language with another resident or employee for the purpose of acquiring or providing care, training, or treatment. (11) In the area of physical exams, a facility shall ensure that a resident is given at least one physical exam on a yearly basis by a medical doctor. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on April 9, 1998. TRD-9804991 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: April 9, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 438-3765 SUBCHAPTER D.General Requirements for Facility Construction 40 TAC sec.sec.90.60, 90.61, 90.65, 90.66, 90.68 The amendments are adopted under the Health and Safety Code, Chapter 252, which provides the department with the authority to license intermediate care facilities serving persons with mental retardation or a related condition; and under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs. The amendments implement the Health and Safety Code, sec.sec.252.001 - 252.186, and the Human Resources Code, sec.sec.22.001 - 22.030. sec.90.61.Introduction, Application, and General Requirements for Facilities for Persons with Mental Retardation or Related Conditions. (a)-(d) (No change.) (e) Applicable codes and standards. Facilities must meet the requirements of NFPA 101, 1985 edition, and any other codes and standards of NFPA listed in this section, except as may be otherwise approved or required by DHS. (1)-(4) (No change.) (5) The facility must meet all applicable provisions and requirements concerning accessibility for individuals with disabilities in the following laws and regulations: the Americans with Disabilities Act of 1990 (Public Law 101-336; Title 42, United States Code, Chapter 126); Title 28, Code of Federal Regulations, Part 35; Texas Civil Statutes, Article 9102; and Title 16, Texas Administrative Code, Chapter 68. Plans for new construction, substantial renovations, modifications, and alterations must be submitted to the Texas Department of Licensing and Regulation (Attention: Elimination of Architectural Barriers Program) for accessibility approval under Article 9102. (f) (No change.) This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on April 9, 1998. TRD-9804992 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: May 1, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 438-3765 40 TAC sec.90.142 The repeal is adopted under the Health and Safety Code, Chapter 252, which provides the department with the authority to license intermediate care facilities serving persons with mental retardation or a related condition; and under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs. The repeal implements the Health and Safety Code, sec.sec.252.001 - 252.186, and the Human Resources Code, sec.sec.22.001 - 22.030. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on April 9, 1998. TRD-9804994 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: May 1, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 438-3765 SUBCHAPTER F.Inspections, Surveys, and Visits 40 TAC sec.sec.90.191-90.192 The amendments are adopted under the Health and Safety Code, Chapter 252, which provides the department with the authority to license intermediate care facilities serving persons with mental retardation or a related condition; and under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs. The amendments implement the Health and Safety Code, sec.sec.252.001 - 252.186, and the Human Resources Code, sec.sec.22.001 - 22.030. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on April 9, 1998. TRD-9804993 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: May 1, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 438-3765 40 TAC sec.90.193 The repeal is adopted under the Health and Safety Code, Chapter 252, which provides the department with the authority to license intermediate care facilities serving persons with mental retardation or a related condition; and under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs. The repeal implements the Health and Safety Code, sec.sec.252.001 - 252.186, and the Human Resources Code, sec.sec.22.001 - 22.030. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on April 9, 1998. TRD-9804995 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: May 1, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 438-3765 SUBCHAPTER G.Abuse, Neglect, and Exploitation; Complaint and Incident Reports and Investigations 40 TAC sec.sec.90.211-90.213, 90.217 The amendments and new sections are adopted under the Health and Safety Code, Chapter 252, which provides the department with the authority to license intermediate care facilities serving persons with mental retardation or a related condition; and under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs. The amendments and new sections implement the Health and Safety Code, sec.sec.252.001 - 252.186, and the Human Resources Code, sec.sec.22.001-22.030. sec.90.211. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Abuse - Any of the following actions: (A) any act or failure to act performed knowingly, recklessly, or intentionally, including incitement to act, which caused or may have caused physical injury or death to a person served; (B) any act of inappropriate or excessive force or corporal punishment, regardless of whether the act results in an injury to a person served; (C) any use of chemical or bodily restraints not in compliance with federal and state laws and regulations; (D) sexual abuse as defined in this section; and (E) any act or use of verbal or other communication including gestures to curse, vilify, or degrade a person served or threaten a person served with physical or emotional harm. Abuse of a child - The following acts or omissions by any person: (A) mental or emotional injury to a child that results in an observable and material impairment in the child's growth, development, or psychological functioning; (B) causing or permitting the child to be in a situation in which the child sustains a mental or emotional injury that results in an observable and material impairment in the child's growth, development, or psychological functioning; (C) physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child, including an injury that is at variance with the history or explanation given and excluding an accident or reasonable discipline by a parent, guardian, or managing or possessory conservator that does not expose the child to a substantial risk of harm; (D) failure to make a reasonable effort to prevent an action by another person that results in physical injury that results in substantial harm to the child; (E) sexual conduct harmful to a child's mental, emotional, or physical welfare; (F) failure to make a reasonable effort to prevent sexual conduct harmful to a child; (G) compelling or encouraging the child to engage in sexual conduct as defined by the Texas Penal Code, sec.43.01; or (H) causing, permitting, encouraging, engaging in, or allowing the photographing, filming, or depicting of the child if the person knew or should have known that the resulting photograph, film, or depiction of the child is obscene (as defined by sec.43.21 of the Texas Penal Code, sec.43.21) or pornographic. Administrator - The director of the facility. Allegation - A report by a person believing or having knowledge that a person receiving services has been or is in a state of abuse, neglect, or exploitation. Child- A person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes. Complaint- An allegation of abuse, neglect, misappropriation of property, or any other allegation of a regulatory violation which is reported by individuals, family members, or any other person. Confirmed - A finding that an allegation of abuse, neglect, or exploitation is supported by the preponderance of the evidence. Department - Texas Department of Human Services. Designee- A staff member immediately available who is temporarily or permanently appointed to assume designated responsibilities delegated by the administrator. Exploitation - The illegal or improper act or process of using a person served or the resources of a person served for monetary or personal benefit, profit, or gain. Facility - The management, administrator, or other person involved in the provision of care and services to individuals/clients, also including the physical building. Frequency - The incidence or extent of the occurrence of an identified situation in the facility. The situation can affect a single individual or multiple individuals. Immediate and serious threat - A situation or set of circumstances in which a high probability exists that serious harm or injury to individuals could occur at any time or already has occurred and may occur again if individuals are not protected from harm or the threat is not removed. Incident - An allegation of abuse or neglect reported by facility staff to the Texas Department of Human Services state office as required by law. Incitement - To spur to action or instigate into activity; implies responsibility for initiating another's actions. Misappropriation of property - The taking, secretion (concealing), misapplication, deprivation, transfer or attempted transfer to any person not entitled to receive any property, real or personal, or any other thing of value belonging to or under the legal control of an individual without the effective consent of the individual or other appropriate legal authority or the taking of any action contrary to any duty imposed by federal or state law prescribing conduct relating to the custody or disposition of property of an individual. Neglect - A negligent act or omission by any individual responsible for providing services in a facility rendering care or treatment which caused or may have caused physical or emotional injury or death to an individual with mental illness or mental retardation, or which placed an individual with mental illness or mental retardation at risk of physical or emotional injury or death, and includes an act or omission such as the failure to establish or carry out an appropriate individual program plan or treatment plan for a person served, the failure to provide adequate nutrition, clothing, or health care to a person served, or the failure to provide a safe environment for a person served, including the failure to maintain adequate numbers of appropriately trained staff. Neglect of a child - Any of the following: (A) an act which leaves a child in a situation where the child would be exposed to a substantial risk of physical or mental harm, without arranging for necessary care for the child, and a demonstration of an intent not to return by a parent, guardian, or managing or possessory conservator of a child; (B) the failure by the person responsible for a child's care, custody, or welfare to permit the child to return to the child's home without arranging for the necessary care for the child after the child has been absent from the home for any reason, including having been in residential placement or having run away; or (C) the following acts or omissions by any person: (i) placing a child in or failing to remove the child from a situation that a reasonable person would realize requires judgment or actions beyond the child's level of maturity, physical condition, or mental abilities and that results in bodily injury or a substantial risk of immediate harm to the child; (ii) the failure to seek, obtain, or follow through with medical care for a child, with the failure resulting in or presenting a substantial risk of death, disfigurement, or bodily injury or with the failure resulting in an observable and material impairment to the growth, development, or functioning of the child; (iii) the failure to provide a child with food, clothing, or shelter necessary to sustain the life or health of the child, excluding failure caused primarily by financial inability unless relief services had been offered and refused; or (iv) placing a child in or failing to remove the child from a situation in which the child would be exposed to a substantial risk of sexual conduct harmful to the child. Nonserious physical injury - Any injury determined not to be serious by the examining physician. Examples of nonserious injury may include the following: superficial laceration, contusion, abrasion. Person responsible for a child's care, custody, or welfare - A person who traditionally is responsible for a child's care, custody, or welfare, including: (A) a parent, guardian, managing or possessory conservator, or foster parent of the child; (B) a member of the child's family or household as defined by the Texas Family Code, Chapter 71; (C) a person with whom the child's parent cohabits; (D) school personnel or a volunteer at the child's school; or (E) personnel or a volunteer at a public or private child-care facility that provides services for the child or at a public or private residential institution or facility where the child resides. Perpetrator - The person who has committed an act of abuse, neglect, or exploitation. Reporter - The person filing a report of alleged abuse, neglect, or exploitation, whether the victim of alleged abuse, neglect, or exploitation, a third party filing a report on behalf of the alleged victim, or both. Serious physical injury - An injury determined to be serious by the examining physician. Examples of serious injury may include the following: fracture, dislocation of any joint, internal injury, any contusion larger than two and one half inch in diameter, concussion, second or third degree burns. Severity - The seriousness of the identified situation; the degree to which a problem compromises residents' health and safety, or fails to achieve the highest practicable level of physical, mental and psychosocial well-being. Sexual abuse- Any sexual activity, including sexual exploitation as defined in the Texas Penal Code, involving an employee, agent, or contractor and a person served. Sexual activity includes, but is not limited to, kissing with sexual intent, stroking with sexual intent, or fondling with sexual intent; oral sex or sexual intercourse; request or suggestion or encouragement by staff for performance of sex with the employee himself/herself or with another person served. Sexual exploitation - A coercive, manipulative, or otherwise exploitative pattern, practice, or scheme of conduct, which may include sexual contact, that can reasonably be construed as being for the purposes of sexual arousal or gratification or sexual abuse of any person. The term does not include obtaining information about a patient's sexual history within standard accepted clinical practice. Sexually transmitted disease - Any infection of a person served, with or without symptoms or clinical manifestations, that is or may be transmitted from one person to another as a result of sexual contact between persons. Unconfirmed - Term used to describe an allegation of abuse, neglect, or exploitation which is not supported by the preponderance of the evidence. Unfounded - A finding that an allegation of abuse, neglect, or exploitation is spurious or patently without factual basis. sec.90.212. Incidents of Abuse and Neglect Investigated and Reported by Facilities to the Texas Department of Human Services (DHS). (a) Purpose; duty of facility to investigate. The purpose of this section is to define and prohibit abuse, neglect, and exploitation of any person receiving services from a facility licensed as an Intermediate Care Facility for Persons with Mental Retardation or Related Conditions under the Health and Safety Code, Chapter 252, or facility contractor; and to prescribe procedures that a facility must use in reporting abuse, neglect, and exploitation in conducting its own investigations and in training provided on conducting investigations. The facility must investigate reports of abuse, neglect, and exploitation. (b) Reporting responsibilities of employees; failure to report. (1) Any employee who suspects or has knowledge of, or who is involved in an allegation of abuse, neglect, or exploitation, shall make a verbal report to DHS, if possible, but in no case more than one hour after the incident. A facility may require its employees to make a verbal report to the facility administrator, if possible, but no later than one hour after the incident. (2) Each employee of a facility must sign a statement that the employee realizes that the employee may be criminally liable for failure to report abuses and that the employee understands his rights under the Health and Safety Code sec.252.132, such as that the employee has a cause of action against a facility, its owner(s), or employees if he is suspended, terminated, disciplined or discriminated against as a result of reporting abuse or neglect of a resident. These statements must be available for inspection by DHS. (3) If the person making the allegation is not an employee, such as a person receiving services or a guest, staff shall assist the individual in making the report, if necessary. (4) The facility owner, administrator, designee, or employee of the facility who has cause to believe that the physical or mental health or welfare of a resident has been, or may be adversely affected by abuse or neglect caused by another person, must report the abuse or neglect to the DHS, at 1-800-292-2065, any day or hour. The following incidents, for example, must be reported to DHS's state office, regardless of the time of day: death; missing resident; abuse or neglect allegations; sexual abuse; misappropriation of resident property; accidental injuries or injuries of unknown origin, if there is reason to believe they were the result of abuse or neglect or if they resulted in serious physical injury; and resident-to-resident abuse if a resident is killed, taken to the hospital, or the physician has ordered treatment other than observation when there is a serious injury. (c) Qualifications of the facility investigator. (1) The investigator may be an employee of the licensed facility or an independent party who has been trained by an organization that specializes in procedures and techniques for the investigation of abuse and neglect in the area of mental retardation and related conditions. (2) The investigator cannot be the alleged perpetrator or involved in the allegation of abuse or neglect, the administrator or designee, owner, part owner, legal successor or anyone with a controlling interest in the facility/corporation. (3) The investigator must receive and provide evidence, upon request, that he received training on investigation procedures. The documentation of the training content and proof of attendance must be maintained in the facility files. (4) The training must include at a minimum: (A) definitions and threshold questions regarding what is an investigation, what are facts, what is evidence, evidence and findings of fact and conclusions. (B) organizing and conducting an investigation--the half life of evidence, assigning responsibility, early stages in an investigation, order of witness interviews and relationship to criminal investigations. (C) collecting testimonial evidence--identifying witnesses, preparing for an interview, conducting the interview (investigator demeanor), questioning the witness, interviewing uncooperative witnesses and targets and the right to representation. (D) documentary evidence/taking statements--how to take a statement, special problems in taking statements, and collecting business records. (E) collecting and preserving physical evidence--injuries, locations in which incidents occur and substances and objects. (F) drawing conclusions and reporting investigative findings--evaluating evidence and writing investigative reports. (d) Responsibility of the facility investigator. (1) Within 24 hours of receipt of an allegation, the investigator will begin to conduct an investigation. The investigator will: (A) immediately notify the law enforcement agency of any sexual incident, physical abuse that results in an injury, drug diversions, burglary, and theft, for investigation and evidence collection. The investigator will record the date and time of the allegation, name of law enforcement employee contacted, and the police case number; (B) interview all witnesses, the alleged victim, and the alleged perpetrator as soon as possible after the initial report of the allegation; (C) obtain a written and signed statement regarding the allegation following each interview. The statement(s) may be written by the investigator, but shall be signed and dated by those giving the statement, if possible, and by the investigator; (D) ensure that appropriate medical treatment was obtained, if warranted, for the alleged victim and the treatment was documented; and (E) review and evaluate all physical, circumstantial and direct evidence, in order to determine whether there is sufficient evidence to confirm the allegation, through: (i) interviews; (ii) statements; (iii) physical exam and medical treatment rendered; (iv) photographs; (v) diagrams; (vi) visits to the site of the incident; (vii) other physical evidence; and (viii) use of experts or consultants as needed. (2) The investigator will write a report and it will contain the following information: (A) a brief description of the allegation; (B) a detailed description of the investigation from its initiation to completion, including date, time, and location of the alleged incident; location of the alleged victim, witnesses, and the suspect; description of injuries to the alleged victim; how the incident was discovered; how the alleged perpetrator was identified; description of any other evidence; and how the evidence was collected and protected; (C) summary of the evidence; (D) analysis of the evidence; (E) determination as to whether the abuse, neglect, or exploitation occurred; and (F) recommendations regarding corrective actions. (3) The report should include all witness statements and supporting documentation. (4) The investigator will provide a copy of the report to the facility administrator or designee. (5) The administrator or designee will accept or reject the recommendations and document justification in areas of disagreement, which will be attached to the facility investigator's report. (6) The written investigation report must be sent to DHS no later than the fifth calendar day after the oral report. (7) If law enforcement was notified, the investigator or administrator or designee will submit the report to the law enforcement agency. (e) Responsibilities of the facility administrator or designee. (1) Immediately, but in no case more than one hour, after notification of an allegation of abuse, neglect, or exploitation, the facility administrator or designee shall ensure that adequate medical and psychological care have been provided to the alleged victim, and shall take measures to ensure the safety of the person, including the following actions. (A) If the accused is an employee, including a contracted provider of service, the facility administrator or designee will determine whether action should be taken regarding the employee, which could include termination of employment, reassigning the employee to non-client contact, or granting the employee leave pending an investigation. An employee accused of client abuse should be immediately separated from contact with residents. (B) If an allegation involves client to client aggression, the facility administrator or designee will take immediate appropriate action to protect the alleged victim and other residents, such as one- on-one observation of the alleged perpetrator or the alleged victim, or separation. (C) If the accused is another person who is known but who is neither a staff person or resident, such as a family member or friend, and the alleged incident occurred away from the facility, interdisciplinary team (IDT) and client will address the alleged perpetrator's access to the alleged victim pending an investigation. The restriction and justification shall be documented in the resident's record. The facility administrator or designee will contact the Texas Department of Protective and Regulatory Services at 1-800- 252-5400 for investigation, in addition to notifying the local law enforcement agency and DHS. (D) The facility administrator or designee, with the consent of the alleged victim or his legal guardian, shall immediately, but in no case later than 24 hours after notification of an allegation of abuse, neglect or exploitation, notify the parents, spouse, or other appropriate relative of the alleged victim. If oral contact cannot be made, the administrator will provide notification by certified mail with a return receipt requested. (E) The facility administrator or designee will ensure that the resident's medical and psychological needs are met immediately and on an ongoing basis. (2) The facility administrator or designee will notify the facility investigator immediately, but in no case more than one hour after notification of the incident, of the alleged abuse, neglect, or exploitation. (3) The facility administrator or designee will assist the investigator in whatever way possible to make staff who are relevant to the investigation available in an expeditious manner and ensure all evidence is preserved and safe guarded to protect the chain of evidence. (f) Confidentiality of the investigative process. (1) The administrator or designee will advise the resident of the outcome in a language or process which the resident understands and in writing. The legal guardian or parent of a minor and reporter(s) shall be informed in writing of the outcome of the investigation. (2) The perpetrator will be informed, in writing, of the outcome of the investigation and any disciplinary action. (g) Facility responsibility. (1) The facility administrator or designee must ensure that resident rights and protection are upheld at all times. (2) If resident-to-resident abuse is substantiated, the facility IDT will determine if the victim understands the situation and is able to make informed decisions. If the IDT determines that the victim is unable to make informed decisions, the IDT will determine if the perpetrator's behavior is dangerous and ongoing. If it is determined that the behavior is dangerous and ongoing, the facility will take immediate action to protect all residents in the facility. In addition, the IDT will consider program changes and/or discharge planning for the perpetrator. If the behavior of the perpetrator is not dangerous and ongoing, the IDT will determine what the needs of the perpetrator are, such as behavior program or specialized training, and take appropriate action. (3) If abuse by an outside person, not facility or contract staff, is substantiated, the facility IDT will determine if the victim is able to make an informed decision regarding any interaction with the perpetrator. If the IDT determines that the client is unable to make informed decisions, the IDT will determine the degree of restrictions on visitation. (h) Disciplinary action. (1) The facility administrator or designee will be responsible for taking prompt and proper disciplinary action when a charge of abuse, neglect, or exploitation is confirmed by the investigator. (2) If a provider continues to employ an employee who has a history of abuse neglect, or exploitation, DHS may impose a sanction of license revocation, denial of license renewal, or civil penalties under Health and Safety Code sec.252.064. (3) If anyone is dissatisfied with the investigation, they may contact DHS. (i) Failure to report. Failure to report and/or conduct investigations in accordance with this section may result in license revocation, denial of license renewal, or civil penalties under Health and Safety Code sec.252.064. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on April 9, 1998. TRD-9804997 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: May 1, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 438-3765 40 TAC sec.sec.90.211, 90.212 The repeals are adopted under the Health and Safety Code, Chapter 252, which provides the department with the authority to license intermediate care facilities serving persons with mental retardation or a related condition; and under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs. The repeals implement the Health and Safety Code, sec.sec.252.001 - 252.186, and the Human Resources Code, sec.sec.22.001 - 22.030. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on April 9, 1998. TRD-9804996 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: May 1, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 438-3765 SUBCHAPTER J.Respite Care 40 TAC sec.sec.90.281-90.283, 90.287 The amendments are adopted under the Health and Safety Code, Chapter 252, which provides the department with the authority to license intermediate care facilities serving persons with mental retardation or a related condition; and under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs. The amendments implement the Health and Safety Code, sec.sec.252.001 - 252.186, and the Human Resources Code, sec.sec.22.001 - 22.030. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on April 9, 1998. TRD-9804998 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: May 1, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 438-3765 SUBCHAPTER K.Certification of Facilities for Care of Persons with Alzheimer's Disease and Related Disorders 40 TAC sec.sec.90.301-90.304 The repeals are adopted under the Health and Safety Code, Chapter 252, which provides the department with the authority to license intermediate care facilities serving persons with mental retardation or a related condition; and under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs. The repeals implement the Health and Safety Code, sec.sec.252.001 - 252.186, and the Human Resources Code, sec.sec.22.001 - 22.030. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on April 9, 1998. TRD-9804999 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: May 1, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 438-3765 SUBCHAPTER L.Provisions Applicable to Facilities Generally 40 TAC sec.sec.90.321, 90.323-90.325 The amendments and new sections are adopted under the Health and Safety Code, Chapter 252, which provides the department with the authority to license intermediate care facilities serving persons with mental retardation or a related condition; and under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs. The amendments and new sections implement the Health and Safety Code, sec.sec.252.001 - 252.186, and the Human Resources Code, sec.sec.22.001 - 22.030. sec.90.323. Procedures for Inspection of Public Records. (a)-(d) (No change.) (e) Records maintained by Long Term Care-Regulatory are open to the public, with the following exceptions: (1) (No change.) (2) all reports, records, and working papers used or developed by DHS in an investigation of reports of abuse and neglect are confidential, and may be released to the public only as follows: (A) (No change.) (B) if DHS receives written authorization from a facility resident or the resident's legal representative regarding an investigation of abuse or neglect involving that resident, DHS will release the completed investigation report without removing the resident's name. The authorization must: (i) be signed and dated within six months of the request or state a length of time the authorization is valid; (ii) detail the information to be released; (iii) identify to whom the information can be released; and (iv) release DHS from all liability for complying with the authorization. (3)-(8) (No change.) (f) (No change.) This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on April 9, 1998. TRD-9805001 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: May 1, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 438-3765 40 TAC sec.90.322 The repeal is adopted under the Health and Safety Code, Chapter 252, which provides the department with the authority to license intermediate care facilities serving persons with mental retardation or a related condition; and under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer its programs. The repeal implements the Health and Safety Code, sec.sec.252.001 - 252.186, and the Human Resources Code, sec.sec.22.001 - 22.030. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on April 9, 1998. TRD-9805000 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: May 1, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 438-3765