Part I.
Texas Department of Health
Chapter 1.
Texas Board of Health
Subchapter G. Clinical Health Services
25 TAC §1.91
The Texas Department of Health (department) adopts an amendment
to §1.91 concerning Fees for Clinical Health Services with changes to
the proposed text published in the May 7, 1999, issue of the
Texas Register
(24 TexReg 3443).
The General Appropriations Act, House Bill 1, Article IX, Rider 167, passed
by the 75th Legislature, 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). The section has been reviewed,
and the department has determined that reasons for readopting the section
continue to exist.
The department is making the following minor changes to the proposed text
due to staff comments received during the comment period to clarify the intent
and improve the accuracy of the section.
Change: Concerning §1.91(b)(1), the department has changed the order
of the sentences to describe more concisely the public's access to the fee
schedule and has corrected an erroneous reference by stating that the Income
Guidelines and Schedule of Charges shall be available for public inspection
in the Bureau of Community Oriented Public Health.
Change: Concerning §1.91(c)(2), the department will provide notice
and the opportunity for a fair hearing under 25 Texas Administrative Code
(TAC), §§1.51-1.55, rather than a formal hearing under 25 TAC §§1.21-1.34,
to persons subject to modification, suspension, or termination of access to
clinical health services for fraudulently or deliberately misrepresenting
their ability to pay scheduled fees. As required by House Bill 2085, 76th
Legislature, 1999, the department may schedule no new hearings under §§1.21-1.34
after September 1, 1999.
The amendment is adopted under the Health and Safety Code, §12.032,
which provides the board with the authority to adopt rules for collecting
fees for clinical health services; and the Health and Safety Code, §12.001,
which provides the Texas Board of Health (board) with the authority to adopt
rules for its procedure and for the performance of each duty imposed by law
on the board, the department, and the commissioner of health. The General
Appropriations Act, House Bill 1, Article IX, Rider 167, passed by the 75th
Legislature, is implemented by the adoption.
§1.91.Fees for Clinical Health Services.
(a)
(No change.)
(b)
Schedule of fees.
(1)
The department shall base the calculation of fees upon
the federal poverty guidelines published annually by the U.S. Department of
Health and Human Services. The commissioner of health shall adjust the income
guidelines annually to determine the schedule of fees for clinical health
services. The Income Guidelines and Schedule of Charges shall be published
in the
Texas Register
not later than 30 days
after adoption by the commissioner of health and shall be available for public
inspection in the offices of the Bureau of Community Oriented Public Health.
(2)
The following schedule of fees lists the fees covering
clinical health services provided at public health clinics. Local health department
contractors may use the following schedule or their own schedule. Public health
regions shall use the following schedule.
Figure: 25 TAC §1.91(b)(2)
(3)
(No change.)
(4)
The clinic shall determine if a person is able to
pay in accordance with the appropriate schedule; however, the clinic shall
not deny services because of a person's inability to pay.
(5)
Patients or clients whose incomes are above the 200%
+ poverty level shall be referred to the private sector for care unless extenuating
circumstances exist. Such circumstances include provision of immunization
services, prevention and control of communicable diseases, unusually high
medical expenses or the unavailability of specific care needed. Such exceptions
may receive care at the public health clinic in accordance with the schedule
of fees.
(6)-(10)
(No change.)
(c)
Modification, suspension, or termination of services.
(1)
The department may modify, suspend, or terminate services
to a person determined able to pay for nonpayment of fees after notice to
the person and opportunity for hearing. The criteria upon which the department
will take such action is when the person fraudulently or deliberately misrepresents
a material fact about his or her eligibility, ability to pay, or the application
of the schedule of fees to him/her.
(2)
The department shall conduct the hearing in accordance
with §§1.51-1.55 of this title (relating to Fair Hearing Procedures).
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 July
26, 1999.
TRD-9904467
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: August 15, 1999
Proposal publication date: May 7, 1999
For further information, please call: (512) 458-7236
25 TAC §1.171
The Texas Department of Health (department) adopts a repeal
of §1.171 concerning personnel policies and procedures for sick leave
pooling for the department without changes to the proposed text as published
in the January 29, 1999, issue of the
Texas Register
(24 TexReg 486), and therefore will not be republished.
The General Appropriations Act, House Bill 1, Article IX, Rider 167, passed
by the 75th Legislature, requires each state agency to review and consider
for readoption each rule adopted by that agency pursuant to the Government
Code, Chapter 2001 (Administrative Procedure Act). Section 1.171 has been
reviewed and the department has determined that the reasons for adopting the
section do not continue to exist. This rule is currently in a department policy
manual utilized by the Bureau of Human Resources.
The department published a Notice of Intention to Review the section as
required by Rider 167 in the
Texas Register
(23 TexReg 9077) on September 4, 1998. No comments were received by the department
on this section due to publication of this notice.
No comments were received by the department on this section concerning
the proposal during the comment period.
The repeal is adopted under the Health and Safety Code, §12.001
which provides the board with the authority to adopt rules for its procedures
and the performance of each duty imposed by law on the board, the department,
and the commissioner of health. The General Appropriations Act, House Bill
1, Article IX, Rider 167, passed by the 75th Legislature is implemented by
this adoption.
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 July
26, 1999.
TRD-9904468
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: August 15, 1999
Proposal publication date: January 29, 1999
For further information, please call: (512) 458-7236
Subchapter A. Kidney Health Care Program
25 TAC §§61.1-61.9
The Texas Department of Health (department) adopts amendments
to §§61.1 61.9, concerning kidney health care benefits. Sections
61.1 61.2, 61.4, and 61.6, 61.7 are adopted with changes to the proposed text
as published in the June 4, 1999, issue of the
Texas
Register
(24 TexReg 4143). Sections 61.3, 61.5, and 61.8, 61.9 are
adopted without changes, and therefore the sections will not be republished.
The sections are amended in order to facilitate the consolidation of Kidney
Health Care's drug claims processing functions with the Vendor Drug Program's
drug claims processing functions, as mandated by Rider 38 to Department of
Health Appropriations, House Bill 1, General Appropriations Act, 75th Legislative
Session, 1997. Amendments are also required to facilitate the implementation
of Kidney Health Care's new automated patient and provider enrollment and
medical/transportation claims processing system and to clarify existing rules
language.
The department is making the following minor changes due to staff comments
to clarify the intent and improve the accuracy of the section.
Change: Concerning §61.7(d), the department added the language ",
and not prospectively" after the word "rendered" to clarify the intent of
the rule.
Change: Concerning §61.6(k), the second sentence, "Benefits are payable
only after all other third parties or government entities (e.g., private/group
insurance, Medicare, Medicaid, or the Veterans Administration) have met their
liability.", was deleted because the language is redundant.
The following comments were received concerning the proposed sections.
Following each comment is the department's response and any resulting change(s).
Comment: Concerning §61.2(a)(3), a commentor opposed the rule change
which requires an applicant to apply for Medicare Chronic Renal Disease Coverage
in order to be eligible for Kidney Health Care benefits.
Response: The department agrees with the commentor and the proposed language
has been deleted.
Comment: Concerning §61.1(c)(25), a commentor requested clarification
of the differences in coverage in the Texas Drug Code Index (TDCI) and the
Kidney Health Care (KHC) Reimbursable Drug Index.
Response: The department agrees with the commentor and has included language
in the definition to clarify that, although not all drugs listed on the TDCI
are covered by KHC, all drugs covered by KHC are included on the TDCI.
Comment: Concerning proposed §61.2(a)(7), renumbered as §61.2(a)(6),
a commentor recommended that the criteria for income eligibility be based
on the number of persons in the household, and using a percent of poverty
level.
Response: The department disagrees with the commentor. Kidney Health Care
benefits are limited to the approved recipient and do not extend to other
family members. Applying the Federal Poverty Guidelines would result in persons
currently eligible for benefits being excluded from participation in the program.
No change was made as a result of this comment.
Comment: Concerning §61.4(3)(A), a commentor opposed the rule change
which reduces the eligibility effective date from 90 to 30 days prior to the
date KHC receives a completed application. The commentor was concerned that
patients would not be able to procure the necessary documents in that time
frame and recommended that the rule be changed to 60 days prior to receipt
of a completed application.
Response: The department disagrees with the commentor. Since most applicants'
KHC effective dates are based on the first day of dialysis, the documentation
required for residency should not take more than 30 days to submit. The department
will continue to review the documentation required in order to expedite the
submission of applications to insure patients do not lose KHC coverage during
their eligibility period. No change was made as a result of this comment.
Comment: Concerning §61.6(a), a commentor opposed the deletion of
the language that was previously in §61.6(a)(5), which discontinues the
coverage of transplant surgery as a benefit of Kidney Health Care.
Response: The department disagrees with the commentor. The department has
paid for only two renal transplants in the past ten years. Kidney Health Care's
reimbursement rate for transplant surgery is limited to the $30,000 per fiscal
year maximum, which is not considered sufficient reimbursement by most transplant
hospitals. No change was made as a result of this comment.
Comment: Concerning §61.6(e), three commentors opposed the rule change
which discontinues Kidney Health Care drug benefits for recipients eligible
for drug coverage under a private/group health insurance plan. The commentors
were concerned about the limited drug coverage offered by many health insurance
plans and recommended that this rule be reconsidered.
Response: The department disagrees with the commentors. However, language
has been added to clarify that recipients who have exhausted their drug coverage
under their private/group insurance plan may be eligible to receive drug benefits
from KHC. The rule change was necessary to facilitate the consolidation of
the drug claims processing functions of the Kidney Health Care Program with
the drug claims processing functions of the Medicaid Vendor Drug Program.
Comment: Concerning §61.6(g), a commentor was opposed to the rule
change which reduces the eligibility effective date from 90 to 30 days prior
to the date Kidney Health Care (KHC) receives a completed application, thereby
reducing their KHC eligibility period during the Medicare three-month qualifying
period.
Response: The department disagrees with the commentor. Most applicants'
effective dates are based on the first day of dialysis, which will not be
affected by this rule change. Coverage of benefits during the patient's eligibility
period should not vary significantly with the implementation of this rule.
No change was made as a result of this comment.
Comment: Concerning §61.8(h), a commentor opposed the rule change
which reduced the filing deadline for resubmitted claims from no later than
365 days from the date of service to no later than 180 days from the date
of the Kidney Health Care (KHC) return letter or KHC explanation of benefits.
Response: The department disagrees with the commentor. Because it appears
that the commentor is referring to resubmission deadlines for drug claims,
the department wishes to clarify that §61.8(h) does not apply to drug
claims. According to §61.8(g), pharmacy providers will use Vendor Drug
Program claim filing deadlines for submission of KHC drug claims. No change
was made as a result of this comment.
Two commentors were individuals who were not in favor of §61.6(e)
of the rules that discontinues Kidney Health Care drug benefits for recipients
eligible for drug coverage under a private/group health insurance plan. One
of the commentors was also opposed to §61.8(h) that reduces the filing
deadline for resubmitted claims. One commentor was the Patient Services Committee
of the Central Texas Chapter of the National Kidney Foundation in Texas. The
commentor had particular concerns or objections regarding specific sections
of the proposed rules.
The amendments are adopted under the Health and Safety Code,
§42.003, which provides the Texas Department of Health with the authority
to adopt rules to provide adequate kidney care and treatment for the citizens
of the State of Texas and to carry out the purposes and intent of the Texas
Kidney Health Care Act; and §12.00l which provides the Texas Board of
Health (board) 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.
§61.1.General.
(a)
Purpose. The purpose of this Chapter is to establish rules
for Kidney Health Care (KHC). The authority for these rules is granted in
the Texas Health and Safety Code, Chapter 42.
(b)
(No change.)
(c)
Definitions. The following words and terms when used in
this chapter shall have the following meanings, unless the context clearly
indicates otherwise.
(1)-(3)
(No change.)
(4)
Applicant - An individual whose application for KHC
benefits has been submitted through a participating facility and has not received
a final determination of eligibility. This includes an individual whose application
is submitted by a representative or person with legal authority to act for
the individual.
(5)-(7)
(No change.)
(8)
Co-pay liability - The portion of the allowable amount
for which a KHC recipient is responsible.
(9)-(11)
(No change.)
(12)
EOB - A form, in paper or electronic format, which
provides an explanation of benefits. It is used to explain a payment or denial
of a claim.
(13)-(18)
(No change.)
(19)
Participating facility - Any KHC approved or interim
approved facility including:
(A)
(No change.)
(B)
out-of-state outpatient dialysis facilities with whom KHC
has contracted;
(C)
(No change.)
(D)
hospitals located and licensed in Texas that are:
(i)
approved by Medicare; and
(ii)
an approved Texas Medicaid provider;
(E)
out-of-state hospitals that are:
(i)
approved by Medicare; and
(ii)
an approved Texas Medicaid provider;
(F)
military or Veterans Administration hospitals located in
Texas which have a renal unit approved by the Joint Commission on Accreditation
of Healthcare Organizations (JCAHO) or the American Osteopathic Association
(AOA).
(20)-(22)
(No change.)
(23)
Reconsideration - The administrative review process
KHC follows under this chapter.
(24)
Suspended benefits - Eligibility for benefits or
claims which are denied and/or held pending satisfaction of a KHC request
or requirement.
(25)
TDCI - Stands for the Texas Drug Code Index. This
microfiche list of drugs by National Drug Code includes drugs and drug products
approved by the department for payment as a benefit of KHC. Not all drugs
listed on the TDCI are covered by KHC; however, all drugs covered by KHC are
included on the TDCI.
(26)
VDP - Stands for the Texas Medicaid Vendor Drug Program.
§61.2.Recipient Requirements.
(a)
A person shall meet all of the following requirements to
be eligible for Kidney Health Care (KHC) benefits:
(1)-(2)
(No change.)
(3)
be receiving a regular course of chronic renal dialysis
treatments or have received a kidney transplant;
(4)
be a resident of Texas as determined in §61.3
of this title (relating to Residency and Residency Documentation Requirements),
and not be:
(A)
incarcerated in a city, county, state, or federal jail,
or prison;
(B)
a ward of the state;
(C)
a Medicaid-eligible nursing home recipient; or
(D)
a Medicaid recipient under the age of 21;
(5)
submit an application for benefits through a
participating facility; and
(6)
have, or the person(s) who has a legal obligation
to support the applicant have, an adjusted gross income (AGI) of less than
$60,000. Income reported as "joint income" is considered as one income and
may not be divided in computing the recipient's co-pay liability. The person
or persons who have a legal obligation to support the recipient will be determined
by the applicable state law.
(b)-(e)
(No change.)
(f)
A recipient who loses eligibility will not be reinstated
until all outstanding debts owed to KHC by the recipient are paid or arrangements
acceptable to KHC are made for payment.
(g)
(No change.)
§61.4.Applications.
Persons meeting the eligibility requirements set forth in §61.2(a)(1),
(2), (3), (4), and (6), of this title (relating to Recipient Requirements)
must make an application for benefits through a Kidney Health Care (KHC) participating
facility.
(1)
Complete application. A complete application is required
before any eligibility determination will be made. A complete application
shall consist of all of the following:
(A)-(D)
(No change.)
(E)
applicant financial data. Acceptable data to establish
the applicant's financial qualifications shall be submitted with the application.
An adult applicant who is currently a Texas Medicaid recipient is not required
to provide financial data. Changes in income or financial qualifications which
would affect the applicant's eligibility shall be reported to KHC. The applicant
may attach any of the following documents to verify income:
(i)-(ii)
(No change.)
(2)
(No change.)
(3)
Eligibility date for KHC benefits. The KHC eligibility
date will be the later of:
(A)
30 days prior to the date KHC receives a complete application;
(B)-(E)
(No change.)
(4)
Eligibility date for reinstatement of KHC benefits.
If KHC benefits are terminated, the eligibility date for any subsequent benefit
period will be the date on which KHC receives a subsequent completed application
for KHC benefits.
§61.6.Limitations and Benefits Provided.
(a)
Benefits payable by Kidney Health Care (KHC) are as follows:
(1)
KHC allowable out-patient drugs and drug products included
on the Texas Drug Code Index (TDCI) (a list of KHC allowable drugs is available
upon request from KHC, Texas Department of Health, 1100 West 49th Street,
Austin, Texas 78756);
(2)
(No change.)
(3)
access surgery (hospitalization, surgeon's fees, assistant
surgeon's fees, anesthesiologist' fees, Certified Registered Nurse Anesthetist
fees);
(4)
out-patient chronic maintenance dialysis treatments;
(5)
in-patient chronic maintenance dialysis treatments
(excluding treatment for emergency/acute dialysis); and
(6)
Medicare Part A and B premiums, if qualified. To qualify
for this benefit, recipients:
(A)
cannot be eligible for:
(i)
"premium free" Part A coverage; or
(ii)
Medicaid to pay their Medicare premiums;
(B)
shall apply and be accepted for Medicare hospital and medical
insurance;
(C)
shall sign a Medicare agreement which allows KHC to make
Medicare premium payments in their behalf; and
(D)
shall promptly submit all Medicare premium due notice statements
to KHC for payment.
(b)
All KHC benefits are limited to services received in Texas
except for:
(1)
(No change.)
(2)
KHC allowable drugs submitted by any participating
out-of-state pharmacy.
(c)
Depending on the recipient's eligibility status, KHC will
pay for covered services up to a maximum allowable amount per recipient based
upon:
(1)-(5)
(No change.)
(6)
any co-pay liability rates as established by the department;
and
(7)
(No change.)
(d)
Recipients who are eligible for transportation benefits
under the Medicaid Transportation Program (MTP), including those on suspended
status under MTP, are not eligible to receive KHC transportation benefits.
(e)
Recipients eligible for drug coverage under a private/group
health insurance plan are not eligible to receive KHC drug benefits. A recipient
that has exhausted drug coverage under a private/group health insurance plan
may be eligible to receive drug benefits from KHC.
(f)
Access surgery benefits are payable only if the services
were performed on or after the date Texas residency was established and not
more than 180 days prior to the recipient's KHC eligibility effective date.
(g)
KHC medical benefits are payable during the Medicare three-month
qualifying period to recipients who do not have Medicare coverage. Benefits
are payable for services received on or after the KHC eligibility effective
date. The three-month qualifying period shall be calculated from the first
day of the month the recipient begins chronic maintenance dialysis. If a recipient
becomes eligible for Medicare during the three-month period, KHC medical benefits
shall not be payable from the date of Medicare eligibility.
(h)
Limited medical benefits are available beyond the qualifying
period for non-Medicaid eligible recipients who have applied for and have
been denied Medicare coverage based on ESRD. Recipients shall submit a copy
of an official Social Security Administration Medicare denial notification
(based on chronic renal disease) to the department. Transplant patients who
have been successfully transplanted for three years or more are not eligible
for limited medical benefits.
(i)
Recipients eligible for hospital and medical benefits from
Medicare, Medicaid, the Veterans Administration, the military, or other government
programs are not eligible to receive KHC medical benefits.
(j)
Recipients eligible for hospital and medical benefits from
private/group health insurance may be eligible for KHC medical benefits. If
the recipient's third party coverage has a liability equal to or greater than
the KHC allowable rates, KHC will not be liable for payment.
(k)
KHC is payor of last resort. All third parties must be
billed prior to KHC. The Commissioner of Health (Commissioner) may waive this
requirement in individually considered cases where its enforcement will deny
services to a class of end-stage renal disease (ESRD) patients because of
conflicting state or federal laws or regulations, under the Texas Health and
Safety Code, Chapter 42, §42.009.
(l)
The department may restrict or categorize covered services
to meet budgetary limitations. Categories will be prioritized based upon medical
necessity, other third party eligibility and projected third party payments
for the different treatment modalities, caseloads, and demands for services.
Caseloads and demands for services may be based on current and/or projected
data. In the event covered services must be reduced, they will be reduced
in a manner that takes into consideration medical necessity and other third
party coverage. The department may change covered services by adding or deleting
specific services, entire categories or by making changes proportionally across
a category or categories, or by a combination of these methods.
§61.7.Claims Submission and Payment Rates.
(a)
Drug claims shall be submitted electronically to the Vendor
Drug Program (VDP) by the participating pharmacy through the VDP electronic
claims management system, except when VDP allows or requires paper submissions.
(b)
Claims for medical benefits shall be submitted to Kidney
Health Care (KHC) by the provider who rendered the service(s) to the KHC recipient.
(c)
Recipients who are not eligible for transportation benefits
under the Medicaid Medical Transportation Program (MTP) shall submit claims
to KHC for transportation reimbursement.
(d)
Payments will be made using rates in effect on the date
services were rendered, and not prospectively.
(e)
Claims for medical benefits which are submitted for third
party payment and the third party payor has denied the claim without written
explanation shall be submitted to KHC with the following information:
(1)
written explanation by the provider or recipient of the
reason for the denial;
(2)
coverage termination dates, if applicable; and
(3)
the name and phone number of the third party payor's
representative providing the information.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of the Secretary of State on July
26, 1999.
TRD-9904483
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: September 15, 1999
Proposal publication date: June 4, 1999
For further information, please call: (512) 458-7236
25 TAC Chapter 115
(Editor's Note: In order to comply with Senate Bill 374,
Act of May 28, 1999, SB 374, 1.24, 76th legislature, Regular Session, which
transfers all functions, obligations, rights, contracts, records, and rules
from the Texas Department of Health, Title 25, Part I, Chapter 115 to the
Texas Department of Human Services, Title 40, Part I, Chapter 97. The transfer
is effective September 1, 1999.
The Texas Register is administratively transferring the following rules
listed in the conversion chart published in this issue under the Tables and
Graphic section. The table lists the old rule numbers and the new rule numbers
that correspond to them.)
Figure: 40 TAC Chapter 97
25 TAC §130.19
The Texas Department of Health (department) adopts new §130.19
concerning the Sanitarian/Code Enforcement Officers' Advisory Committee (committee)
without changes to the proposed text as published in the May 7, 1999, issue
of the
Texas Register
(24 TexReg 3449), and
therefore the section will not be republished. The committee provides advice
to the Texas Board of Health (board) in the area of rules regarding registered
professional sanitarians and code enforcement offices.
In 1993, the Texas Legislature passed Senate Bill 383 (now codified in
the Government Code, Chapter 2110), which requires that each state agency
adopt rules on advisory committees. The rules must state the purpose and tasks
of the committee, describe the manner in which the committee will report to
the agency, and establish a date on which the committee will be automatically
abolished unless the governing body of the agency affirmatively votes to continue
the committee's existence.
In 1995, the board established a rule, §337.182, relating to the Sanitarian/Code
Enforcement Officers' Advisory Committee. The rule states that the committee
will automatically be abolished on September 1, 1999. The board has now reviewed
and evaluated the committee and has determined that the committee should continue
in existence until September 1, 2003. However, the rule currently found in
Chapter 337 of this title on water hygiene should be moved to Chapter 265
on general sanitation. The existing rule at §337.182 is being repealed
so that it can be replaced by new §265.131. Since this committee also
deals with code enforcement officers, it is appropriate to include a cross-reference
to §265.131 in Chapter 130 on the code enforcement registry.
No comments were received on the proposal during the comment period.
The new section is adopted under the Health and Safety Code,
§11.016, which allows the board to establish advisory committees; the
Government Code, Chapter 2110, which sets standards for the evaluation of
advisory committees by the agencies for which they function; and the Health
and Safety Code, §12.001, which provides the board with authority to
adopt rules for the performance of every duty imposed by law upon the board,
the department, and commissioner of health.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on July
26, 1999.
TRD-9904482
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: September 15, 1999
Proposal publication date: May 7, 1999
For further information, please call: (512) 458-7236
25 TAC §§143.1-143.2, 143.4, 143.7-143.9, 143.11, 143.14, 143.16–143.20
The Texas Department of Health (department) adopts amendments
to §§143.1, 143.2, 143.4, 143.7-143.9, 143.11, 143.14, and 143.16-143.20,
concerning the regulation and certification of persons performing radiologic
procedures. Section 143.9 is adopted with changes to the proposed text as
published in the March 5, 1999, issue of the
Texas
Register
(24 TexReg 1563). Sections 143.1, 143.2, 143.4, 143.7, 143.8,
143.11, 143.14, and 143.16-143.20 are adopted without changes, and therefore
the sections will not be republished.
Specifically, the amendments provide for the regulation and certification
of persons performing radiologic procedures and cover purpose and scope; definitions;
fees; types of certificates and applicant eligibility; examinations; standards
for the approval of curricula and instructors; continuing education requirements;
disciplinary actions; dangerous or hazardous procedures; mandatory training
programs for non-certified technicians; registry of non-certified technicians;
hardship exemptions; and alternate training requirements. Additional changes
update and clarify existing language.
Section 143.2 is amended to add definitions for physician assistant, mobile
radiography, mobile x-ray equipment and portable x-ray equipment. All definitions
are included with numbers to comply with the new
Texas Register
format required by 1 Texas Administrative Code, §91.1,
effective February 17, 1998.
Section 143.4 is amended to add a waiver for training program fees for
programs accredited by the Texas Higher Education Coordinating Board since
the department does less review of those programs than unaccredited programs.
Section 143.7 adds language that restricts copying of a certificate in
order to prevent fraud and misuse.
Section 143.8(e) is amended to allow applicants approved for the limited
certification examination only three attempts to pass the examination in a
three-year period and requires completion of remedial activities before attempting
a fourth examination. Failing the fourth attempt will require re-entering
and completing an approved limited certification program.
Section 143.9(e)(2)(C) reduces the number of independently performed procedures
for the skull category from 15 to four because most procedures are performed
through computed tomography.
Section 143.11(c), (e) and (f) are amended to list what is considered directly
related continuing education and unacceptable continuing education topics
in order to reduce confusion as to what is acceptable continuing education.
Section 143.11(j)(3) is amended to delete an exemption for technologist
who are nonresidents of Texas from submitting a sworn statement of meeting
continuing education hours requirements of their resident state. All Texas
certified technologists need to meet the same continuing education requirements.
Section 143.14(k) adds administrative penalties, pursuant to §2.15
of the Act, that were effective September 1, 1997.
Section 143.16(b)(3) and (7) adds clarifying language to the dangerous
procedures of radiation therapy and cineradiography.
Section 143.16(b)(6) and (c)(9) clarifies which dangerous or hazardous
procedures registered nurses and physician assistants may assist with.
Section 143.17 adds qualifications for non-certified technician training
program instructors to alleviate the necessity of referring to the qualifications
of instructors in §143.9.
Section 143.19(c)(4) is amended to require a list of persons who will be
performing radiologic procedures under a hardship exemption for verification
purposes.
Section 143.20(d)(1)(D) deletes two classroom hours from the training requirement
for registered nurses or physician assistants in the area of patient care
and management essential to diagnostic radiological procedures. Two hours
of classroom instruction have been added to subsection (d)(2)(B) for radiologic
procedures to the spine (non-pediatric).
The following comments were received concerning the proposed sections.
Following each comment is the department's response and any resulting changes.
Comment: Concerning the definition of "practitioner" in §143.2, one
commenter recommended modifying the language from "who prescribes radiologic
procedures for other persons for medical reasons" to "who may supervise radiologic
procedures administered to other persons for medical reasons" because the
scope of practice of advanced practice nurses also includes ordering radiological
procedures.
Response: The department disagrees with the commenter. The definition of
a practitioner is included in the Medical Radiologic Technologist Certification
Act, Texas Civil Statutes, Article 4512m §2.03. No change was made as
a result of this comment.
Comment: Concerning §143.9(e)(2)(C), one commenter suggested for the
skull category that the 100 hours of clinical experience include a minimum
of eight, rather than four, independently performed procedures with at least
two procedures in each of the following: skull (posterior/anterior, anterior/posterior,
lateral and occipital), paranasal sinuses, facial bones and mandibles. The
commenter was concerned that the proposed rule would allow a student independently
performing a minimum of four procedures: two of the mandibles and two other
procedures (skull, paranasal sinuses and facial bones), without ever independently
performing one of the procedures.
Response: The department disagrees with the commenter and the need to increase
the number of independently performed procedures for the skull category from
four to eight because most procedures are performed through computed tomography.
A change was made to reduce the number of mandible procedures from two to
one and that the mandible procedure may be completed by simulation with 90%
accuracy.
The comments were received from the Coalition for Nurses in Advanced Practice
and the Texas Society of Radiologic Technologists, Inc. The commenters were
neither for nor against the rules in their entirety; however, they offered
comments for clarification purposes and suggested recommendations for change
as discussed in the summary of comments.
The amendments are adopted under the Medical Radiologic Technologist
Certification Act, Texas Civil Statutes, Article 4512m, §2.05(e) which
provides the Texas Board of Health (board) with the authority to adopt rules
necessary to implement the Act; and the Texas Health and Safety Code §12.001,
which provides the board 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.
§143.9.Standards for the Approval of Curricula and Instructors.
(a)-(c)
(No change.)
(d)
Application procedures for limited certificate programs
which are not accredited by JRCERT or JRCCVT. An application shall be submitted
to the department at least ten weeks prior to the starting date of the program
to be offered by a sponsoring institution. Official application forms are
available from the department and must be completed and signed by the program
director of the sponsoring institution's program. Program directors shall
be responsible for the curriculum, the organization of classes, the maintenance
and availability of facilities and records, and all other policies and procedures
related to the program or course of study.
(1)-(5)
(No change.)
(6)
The application shall include:
(A)-(H)
(No change.)
(I)
a letter or other documentation from the Texas Workforce
Commission, Proprietary Schools Section indicating that the proposed training
program has complied with or has been granted exempt status under the Texas
Proprietary School Act, Texas Education Code, Chapter 32 and 19 Texas Administrative
Code, Chapter 175 or verification of accreditation by the Texas Higher Education
Coordinating Board; and
(J)
(No change.)
(7)-(10)
(No change.)
(e)
Curricula requirements. Each student must complete a curriculum
which meets or exceeds the following requirements:
(1)
(No change.)
(2)
a clinical practicum for each category of limited
curriculum is required. The practicum must include clinical instruction and
clinical experience under the instruction or direction of a practitioner and
an MRT or LMRT in accordance with the following chart.
Figure: 25 TAC §143.9(e)(2)
(A)-(B)
(No change.)
(C)
For the skull category, the 100 hours of clinical experience
must include a minimum of 4 independently performed procedures to include
the skull (posterior/anterior, anterior/posterior, lateral and occipital),
paranasal sinuses, facial bones, and the mandible. At least one procedure
must be the mandible. The mandible procedure may be completed by simulation
with 90% accuracy. Only one student shall receive credit for any one radiologic
procedure performed.
(D)
(No change.)
(f)-(i)
(No change.)
(j)
Application procedures for limited certificate programs
accredited by JRCERT or JRCCVT.
(1)
(No change.)
(2)
The application must be notarized and shall be accompanied
by the following items:
(A)
(No change.)
(B)
a copy of the current accreditation issued to the program
by the JRCERT or JRCCVT;
(C)-(D)
(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 July
26, 1999.
TRD-9904469
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: September 15, 1999
Proposal publication date: March 5, 1999
For further information, please call: (512) 458-7236
Subchapter L. Licensure of Food Manufacturers and Food Wholesalers-Including Good Manufacturing Practices and Good Warehousing Practices in Manufacturing, Packing and Holding Human Food
25 TAC §§229.181-229.183
The Texas Department of Health (department) adopts amendments
to §§229.181-229.183 concerning licensure of food manufacturers
and food wholesalers - including good manufacturing practices without changes
to the proposed text as published in the April 2, 1999,
Texas Register
(24 TexReg 2609), and therefore the sections will not
be republished.
Specifically, these sections are basic operating requirements for all manufacturers
of food and wholesale distributors of food and concern definitions; licensing
fees and procedures; and minimum standards for licensure. The amended regulations
will provide an update to existing regulations regarding food safety.
The General Appropriations Act, House Bill 1, Article IX, Rider 167 (section),
passed by the 75th Legislature (1997), 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). The sections
have been reviewed and the department has determined that reasons for adopting
the sections continue to exist.
The department published a Notice of Intention to Review §§229.181-229.183
in the
Texas Register
(24 TexReg 831) on February
5, 1999. No comments were received following publication of the Notice.
No comments were received on the proposed rules during the comment period.
The amendments are adopted under the Health and Safety Code,
§431.241, which provides the department with the authority to adopt necessary
regulations pursuant to the enforcement of Chapter 431; and §12.001,
which provides the Texas Board of Health (board) 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 General Appropriations Act, House Bill
1, Article IX, Rider 167, passed by the 75th Legislature (1997) is implemented
by this adoption.
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 July
26, 1999.
TRD-9904470
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: August 15, 1999
Proposal publication date: April 2, 1999
For further information, please call: (512) 458-7236
25 TAC §§229.211-229.222
The Texas Department of Health (department) adopts new §§229.211-229.222
concerning current good manufacturing practice and good warehousing practice
in manufacturing, packing or holding human food. Sections 229.219 and 229.221
are adopted with changes to the proposed text as published in the April 2,
1999, issue of the
Texas Register
(24 TexReg
2622), as the result of comments received during the 30-day comment period.
Sections 229.211-229.218, 229.220, and 229.222 are adopted without changes,
and therefore will not be republished.
The good manufacturing practices and good warehousing practices were previously
adopted as part of the minimum standards for licensure. The adopted new rules
ensure that the good manufacturing practices and good warehousing practices
are applicable to all food irrespective of licensure requirements.
Two comments were received during the comment period on the proposed sections.
Following the comments are the department's responses and the resulting changes.
Comment: Concerning §229.219(2)(C)(iv)(III) and §229.221(c)(4)(D)(iii),
one commenter recommended that the proposed rule be changed to require that
molluscan shellstock be maintained iced or under refrigeration after leaving
the certified shellfish dealer. There is no scientific or technical reason
for the product to be without refrigeration for two hours at points of transfer.
In fact, the lack of temperature control could permit pathogenic bacteria
to grow.
Response: The department agrees with the concerns. Wording has been deleted
and new wording added to §229.219(2)(C)(iv) and §229.221(c)(4)(D)
clarifying the temperature requirements.
Comment: Concerning §§229.219(2)(C)(iv) and 229.221(c)(4)(D),
a comment was received stating that the United States Food and Drug Administration
is not considering lowering the 45 degree Fahrenheit temperature requirement
for molluscan shellstock.
Response: The department agrees with the comment. The language was changed
to state that "molluscan shellstock shall be adequately iced or refrigerated
at 45 degrees Fahrenheit or less during all subsequent distribution, storage,
processing, and sale."
The comments were received from a shellfish industry association and the
United States Food and Drug Administration.
The new sections are adopted under the Health and Safety Code,
§431.241, which provides the department with the authority to adopt necessary
regulations pursuant to the enforcement of Chapter 431; and §12.001,
which provides the Texas Board of Health (board) 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.
§229.219. Production and Process Controls.
All operations in the receiving, inspecting, transporting, segregating,
preparing, manufacturing, packaging, and storing of food shall be conducted
in accordance with good public health and sanitation principles. Appropriate
quality control operations shall be employed to ensure that food is suitable
for human consumption and that food-packaging materials are safe and suitable.
Overall sanitation of the plant shall be under the supervision of one or more
competent individuals assigned responsibility for this function. All reasonable
precautions shall be taken to ensure that production procedures do not contribute
contamination from any source. Testing procedures shall be used where necessary
to identify sanitation failures or possible food contamination by chemicals,
microbes, or extraneous materials. All food that has become contaminated to
the extent that it is adulterated within the meaning of the Act shall be rejected,
or if permissible, treated or processed to eliminate the contamination.
(1)
Raw materials and other ingredients.
(A)
Raw materials and other ingredients shall be inspected
and segregated or otherwise handled as necessary to ascertain that they are
clean and suitable for processing into food and shall be stored under conditions
that will protect against contamination and minimize deterioration. Raw materials
shall be washed or cleaned as necessary to remove soil or other contamination.
Water used for washing, rinsing, or conveying food shall be safe and of sanitary
quality for its intended use. Water may be reused for washing, rinsing, or
conveying food if it does not increase the level of contamination of the food.
Containers and carriers of raw materials should be inspected on receipt to
ensure that their condition has not contributed to contamination or deterioration
of food.
(B)
Raw materials and other ingredients shall either: not
contain levels of microorganisms that may produce food poisoning or other
disease in humans; or they shall be pasteurized or otherwise treated during
manufacturing operations so that they no longer contain levels that would
cause the product to be adulterated within the meaning of the Act. Compliance
with this requirement may be verified by any effective means, including purchasing
raw materials and other ingredients under a supplier's guarantee or certification.
(C)
Raw materials and other ingredients susceptible to contamination
with aflatoxin or other natural toxins shall comply with current Food and
Drug Administration regulations, guidelines, and action levels for poisonous
or deleterious substances before these materials or ingredients are incorporated
into finished food. Compliance with this requirement may be accomplished by
purchasing raw materials and other ingredients under a supplier's guarantee
or certification, or may be verified by analyzing these materials and ingredients
for aflatoxins and other natural toxins.
(D)
Raw materials, other ingredients, and rework susceptible
to contamination with pests, undesirable microorganisms, or material shall
comply with applicable Food and Drug Administration regulations, guidelines,
and defect action levels for natural or unavoidable defects if a manufacturer
wishes to use the materials in manufacturing food. Compliance with this requirement
may be verified by any effective means, including purchasing the materials
under a supplier's guarantee or certification, or examination of these materials
for contamination.
(E)
Raw materials, other ingredients, and rework shall be
held in bulk, or in containers designed and constructed so as to protect against
contamination and shall be held at a temperature and relative humidity and
in a manner to prevent the food from becoming adulterated within the meaning
of the Act. Material scheduled for rework shall be identified as such.
(F)
Frozen raw materials and other frozen ingredients shall
be kept frozen. If thawing is required prior to use, it shall be done in a
manner that prevents the raw materials and other ingredients from becoming
adulterated within the meaning of the Act.
(G)
Liquid or dry raw materials and other ingredients received
and stored in bulk form shall be held in a manner that protects against contamination.
(2)
Manufacturing operations.
(A)
Equipment and utensils and finished food containers shall
be maintained in an acceptable condition through appropriate cleaning and
sanitizing. As necessary, equipment shall be taken apart for thorough cleaning.
(B)
All food manufacturing, including packaging and storage,
shall be conducted under such conditions and controls as are necessary to
minimize the potential for the growth of microorganisms, or for the contamination
of food. Compliance with this requirement may be accomplished by careful monitoring
of physical factors such as time, temperature, humidity, a
w
, pH, pressure, flow rate, and manufacturing operations such as freezing,
dehydration, heat processing, acidification, and refrigeration to ensure that
mechanical breakdowns, time delays, temperature fluctuations, and other factors
do not contribute to the decomposition or contamination of food.
(C)
The internal temperature of potentially hazardous foods
during transport and storage shall be maintained at 45 degrees Fahrenheit
or lower as appropriate for the food.
(i)
After October 5, 2003, the internal temperature of potentially
hazardous foods shall be maintained at 41 degrees Fahrenheit or lower as appropriate
for the food.
(ii)
Frozen foods shall be kept frozen at all times.
(iii)
Shell eggs, after initial packing, must be transported
and stored at a temperature of 45 degrees Fahrenheit or less. If the United
States Department of Agriculture and the U.S. Food and Drug Administration
determine by law that a lower temperature must be maintained, the lower temperature
shall prevail.
(iv)
The temperature of molluscan shellstock from the harvester
through the original shellfish dealer shall be maintained in accordance with
§§241.58-241.60 of this title (relating to Molluscan Shellfish).
Raw molluscan shellstock shall be adequately iced or refrigerated at 45 degrees
Fahrenheit or less during all subsequent distribution, storage, processing,
and sale.
(v)
Hot foods shall be maintained at 140 degrees Fahrenheit
(60 degrees Celsius) or above.
(vi)
Acid or acidified foods shall be heat treated to destroy
mesophilic microorganisms when those foods are to be held in hermetically
sealed containers at ambient temperatures.
(D)
Measures such as sterilizing, irradiating, pasteurizing,
freezing, refrigerating, controlling pH or controlling a
w
that are taken to destroy or prevent the growth of undesirable microorganisms,
particularly those of public health significance, must be adequate under the
conditions of manufacture, handling, and distribution to prevent food from
being adulterated within the meaning of the Act.
(E)
Work-in-process shall be handled in a manner that protects
against contamination.
(F)
Effective measures shall be taken to protect finished
food from contamination by raw materials, other ingredients, or refuse. When
raw materials, other ingredients, or refuse are unprotected, they shall not
be handled simultaneously in a receiving, loading, or shipping area if that
handling could result in contaminated food. Food transported by conveyor shall
be protected against contamination as necessary.
(G)
Equipment, containers, and utensils used to convey, hold,
or store raw materials, work-in-process, rework, or food shall be constructed,
handled, and maintained during manufacturing or storage in a manner that protects
against contamination.
(H)
Effective measures shall be taken to protect against the
inclusion of metal or other extraneous material in food. Compliance with this
requirement may be accomplished by using sieves, traps, magnets, electronic
metal detectors, or other suitable effective means.
(I)
Food, raw materials, and other ingredients that are adulterated
within the meaning of the act shall be disposed of in a manner that protects
against the contamination of other food. If the adulterated food is capable
of being reconditioned, it shall be reconditioned using a method that has
been proven to be effective or it shall be reexamined and confirmed to be
safe within the meaning of the Act before being incorporated into other food.
(J)
Mechanical manufacturing steps such as washing, peeling,
trimming, cutting, sorting and inspecting, mashing, dewatering, cooling, shredding,
extruding, drying, whipping, defatting, and forming shall be performed so
as to protect food against contamination. Compliance with this requirement
may be accomplished by providing adequate physical protection of food from
contaminants that may drip, drain, or be drawn into the food. Protection may
be provided by cleaning and sanitizing all food-contact surfaces, and by using
time and temperature controls at and between each manufacturing step.
(K)
Heat blanching, when required in the preparation of food,
should be effected by heating the food to the required temperature, holding
it at this temperature for the required time, and then either rapidly cooling
the food or passing it to subsequent manufacturing without delay. Thermophilic
growth and contamination in blanchers should be minimized by the use of sufficient
operating temperatures and by periodic cleaning. Where the blanched food is
washed prior to filling, water used shall be safe and of sanitary quality
for its intended use.
(L)
Batters, breading, sauces, gravies, dressings, and other
similar preparations shall be treated or maintained in such a manner that
they are protected against contamination. Compliance with this requirement
may be accomplished by any effective means, including one or more of the following:
(i)
using ingredients free of contamination;
(ii)
employing adequate heat processes where applicable;
(iii)
using proper time and temperature controls;
(iv)
providing adequate physical protection of components
from contaminants that may drip, drain, or be drawn into them;
(v)
cooling to a sufficient temperature during manufacturing;
or
(vi)
disposing of batters at appropriate intervals to protect
against the growth of microorganisms.
(M)
Filling, assembling, packaging, and other operations shall
be performed in such a way that the food is protected against contamination.
Compliance with this requirement may be accomplished by any effective means,
including:
(i)
use of a quality control operation in which the control
points are identified and controlled during manufacturing;
(ii)
proper cleaning and sanitizing of all food-contact surfaces
and food containers;
(iii)
using materials for food containers and food- packaging
materials that are safe and suitable for their intended use;
(iv)
providing physical protection from contamination, particularly
airborne contamination; and
(v)
using sanitary handling procedures.
(N)
Food such as, but not limited to, dry mixes, nuts, intermediate
moisture food, and dehydrated food, that relies on the control of a
w
for preventing the growth of undesirable microorganisms shall be
processed to and maintained at a safe moisture level. Compliance with this
requirement may be accomplished by any effective means, including employment
of one or more of the following practices:
(i)
monitoring the a
w
of food;
(ii)
controlling the soluble solids-water ratio in finished
food; and
(iii)
protecting finished food from moisture pickup, by use
of a moisture barrier or by other means, so that the a
w
of the food does not increase to an unsafe level.
(O)
Acid food, acidified food, and similar food that relies
principally on the control of pH for preventing the growth of undesirable
microorganisms shall be monitored and maintained at a pH of 4.6 or below.
Compliance with this requirement may be accomplished by any effective means,
including employment of one or both of the following practices:
(i)
monitoring the pH of raw materials, food in process, and
finished food; and
(ii)
controlling the amount of acid or acidified food added
to low-acid food.
(P)
When ice is used in contact with food, it shall be made
from water that is safe and of adequate sanitary quality, and shall be used
only if it has been manufactured in accordance with current good manufacturing
practice as outlined in this part.
(Q)
Food-manufacturing areas and equipment used for manufacturing
human food should not be used to manufacture nonhuman food-grade animal feed
or inedible products, unless there is no reasonable possibility for the contamination
of the human food.
§229.221. Good Warehousing Practice.
(a)
Plant and grounds.
(1)
Storage and transportation of food shall be under conditions
that will protect food against physical, chemical, and microbial contamination
as well as against deterioration of the food and the container.
(2)
Food storage facilities shall be properly constructed
and maintained. All walls, ceilings, and floors shall be intact to preclude
entry of vermin and environmental contaminants.
(3)
Doors and loading docks shall be tight-fitting and
kept closed at all times when not in use, or adequately screened during normal
operating hours to prevent entry of rodents, birds, or other pests.
(4)
Outer premises, including trash receptacles, shall
be kept clean and free of odors, debris, high weeds, or standing water which
could harbor or attract vermin.
(5)
Adequate lighting shall be provided to facilitate
cleaning and inspection of stored goods.
(b)
Sanitary facilities.
(1)
Hand-washing and toilet facilities shall be provided and
maintained, including hot and cold running water, hand soap, and single-service
towels as deemed appropriate by the regulatory authority for the types of
foods handled by the licensee.
(2)
Wastewater shall be disposed of in a manner approved
by the regulatory authority.
(c)
Sanitary operations.
(1)
All foods, including refrigerated and frozen foods, shall
be stored off the floor and away from walls to help prevent contamination
by vermin (rodents and insects for example) and moisture, and to facilitate
cleaning and inspection.
(2)
Food storage facilities and transportation vehicles
shall be kept free of rodents, insects, birds, and other pests which may contaminate
food.
(3)
Damaged, distressed, and infested foods shall be
stored in a "morgue area," adequately separated from undamaged foods and shall
be disposed of in a timely manner to preclude further contamination.
(4)
The internal temperature of potentially hazardous
foods during transport and storage shall be maintained at 45 degrees Fahrenheit
or lower as appropriate for the food.
(A)
After October 5, 2003, the internal temperature of potentially
hazardous foods shall be maintained at 41 degrees Fahrenheit or lower as appropriate
for the food.
(B)
Frozen foods shall be kept frozen at all times.
(C)
Shell eggs after initial packing, must be transported
and stored at a temperature of 45 degrees Fahrenheit or less. If the United
States Department of Agriculture and the U.S. Food and Drug Administration
determine by law that a lower temperature must be maintained, the lower temperature
shall prevail.
(D)
The temperature of molluscan shellstock from the harvester
through the original shellfish dealer shall be maintained in accordance with
§§241.58-241.60 of this title (relating to Molluscan Shellfish).
Raw molluscan shellstock shall be adequately iced or refrigerated at 45 degrees
Fahrenheit or less during all subsequent distribution, storage, processing,
and sale.
(5)
During warehousing and transporting, all chemicals
shall be properly stored and physically separated from foods to preclude contamination.
(6)
Foods being warehoused shall be rotated on a "first
in, first out" basis or by oldest date of pack.
(7)
Food storage facilities and transportation vehicles
operated under the control of the licensee shall be kept clean and free of
excessive dust, dirt, spillage, and other debris, including excess moisture.
(8)
Food transport vehicles shall be operated in compliance
with federal regulations pertaining to back-hauling.
(9)
Each incoming lot shall be examined at the time of
receipt and contaminated or adulterated foods shall not be accepted.
(10)
Swollen, leaking, and/or severely dented containers
of food shall be segregated and promptly placed in the "morgue area" and further
contamination, attraction of vermin, or sale prior to reconditioning shall
be prevented.
(11)
Only pesticides approved by the Environmental Protection
Agency (EPA) for use in a food warehouse and/or food processing facility may
be used. Pesticides shall be used only according to label directions. Rodenticides
shall be placed inside enclosed bait boxes or other approved receptacles.
Only a licensed pesticide applicator may apply restricted use pesticides.
(d)
Other provisions.
(1)
Distressed foods salvaged by the licensee shall be salvaged
in accordance with §§229.191-229.202 of this title (relating to
Regulation of Food, Drug, Device, and Cosmetic Salvage Establishments and
Brokers).
(2)
Food wholesalers engaged in the receipt and distribution
of over-the-counter or prescription drugs shall comply with §229.253
of this title (relating to Minimum Standards for Licensure).
(3)
The licensee shall keep accurate distribution records
so that any foods found to be unfit for human consumption may be recalled
expeditiously.
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 July
26, 1999.
TRD-9904479
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: August 15, 1999
Proposal publication date: April 2, 1999
For further information, please call: (512) 458-7236
25 TAC §229.255
The Texas Department of Health (department) adopts an amendment
to §229.255 concerning the Wholesale Drug Distributors Advisory Committee
(committee) without changes to the proposed text as published in the May 7,
1999, issue of the
Texas Register
(24 TexReg
3449), and therefore the section will not be republished. The committee provides
advice to the Texas Board of Health (board) in the area of licensure of wholesale
drug distributors.
In 1993, the Texas Legislature passed Senate Bill 383 (now codified in
the Government Code, Chapter 2110), which requires that each state agency
adopt rules on advisory committees. The rules must state the purpose of the
committee, describe the manner in which the committee will report to the agency,
and establish a date on which the committee will be automatically abolished
unless the governing body of the agency affirmatively votes to continue the
committee's existence.
In 1995, the board established a rule relating to the Wholesale Drug Distributors
Advisory Committee. The rule states that the committee will automatically
be abolished on September 1, 1999. The board has now reviewed and evaluated
the committee and has determined that the committee should continue in existence
until September 1, 2003.
This section amends provisions relating to the operation of the committee.
Specifically, language is revised to reference the Government Code; to continue
the committee until September 1, 2003; to clarify that members holdover until
their replacement is appointed; to state that the presiding and assistant
presiding officers shall be appointed by the chairman of the board for a term
of two years; to allow a temporary vacancy in the office of assistant presiding
officer to be filled by vote of the committee until appointment by the chairman
of the board occurs; to clarify that the committee is prohibited from holding
an executive session (closed meeting) for any reason; to clarify that the
committee and its members may not participate in legislative activity in the
name of the board, the department, or the committee except with certain approval;
to require the committee's annual report in September rather than August;
and to reference reimbursement for a committee member's expenses if authorized
by the General Appropriations Act or budget execution process. These changes
will clarify procedures for the committee and emphasize the advisory nature
of the committee.
No comments were received on the proposal during the comment period.
The amendment is proposed under the Health and Safety Code, §11.016,
which allows the board to establish advisory committees; the Government Code,
Chapter 2110, which sets standards for the evaluation of advisory committees
by the agencies for which they function; and the Health and Safety Code, §12.001,
which provides the board with authority to adopt rules for the performance
of every duty imposed by law upon the board, the department, and commissioner
of health.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June
26, 1999.
TRD-9904466
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: August 15, 1999
Proposal publication date: May 7, 1999
For further information, please call: (512) 458-7236
25 TAC §229.444
The Texas Department of Health (department) adopts an amendment
to §229.444 concerning the Device Distributors and Manufacturers Advisory
Committee (committee) without changes to the proposed text as published in
the May 7, 1999, issue of the
Texas Register
(24 TexReg 3451), and therefore the section will not be republished. The committee
provides advice to the Texas Board of Health (board) in the area of licensure
of device distributors and manufacturers. The committee is required by the
Health and Safety Code, 431.275.
In 1993, the Texas Legislature passed Senate Bill 383 (now codified in
the Government Code, Chapter 2110), which requires that each state agency
adopt rules on advisory committees. The rules must state the purpose and tasks
of the committee, describe the manner in which the committee will report to
the agency, and establish a date on which the committee will be automatically
abolished unless the governing body of the agency affirmatively votes to continue
the committee's existence.
In 1996, the board established a rule relating to the Device Distributors
and Manufacturers Advisory Committee. The rule states that the committee will
automatically be abolished on September 1, 1999. The board has now reviewed
and evaluated the committee and has determined that the committee should continue
in existence until September 1, 2003.
In addition, the General Appropriations Act, House Bill 1, Article IX,
Rider 167, passed by the 75th Legislature, requires each state agency to review
and consider for readoption each rule adopted by that agency pursuant to the
Government Code, Chapter 2001 (Administrative Procedure Act). Section 229.444
has been reviewed and the department has determined that the reasons for adopting
the section continue to exist.
This section amends provisions relating to the operation of the committee.
Specifically, language is revised to reference the Health and Safety Code,
§11.016 and the Government Code; to continue the committee until September
1, 2003; to reflect the statutory composition of the committee; to clarify
that members holdover until their replacement is appointed; to clarify that
the committee is prohibited from holding an executive session (closed meeting)
for any reason; to clarify that the committee and its members may not participate
in legislative activity in the name of the board, the department, or the committee
except with certain approval; to require the committee's annual report in
September rather than August; and to reference reimbursement for a committee
member's expenses if authorized by the General Appropriations Act or budget
execution process. Other minor changes were made for clarification. These
changes will clarify procedures for the committee and emphasize the advisory
nature of the committee.
The department published a Notice of Intention to Review this section as
required by Rider 167 in the
Texas Register
(23 Tex Reg 9078) September 4, 1998. No comments were received by the department
following that notice.
No comments were received on the proposal during the comment period.
The amendment is adopted under the Health and Safety Code, §431.275,
which requires the board to establish a committee on the licensing of device
distributors and manufacturers; Health and Safety Code, §11.016, which
allows the board to establish advisory committees; the Government Code, Chapter
2110, which sets standards for the evaluation of advisory committees by the
agencies for which they function; and the Health and Safety Code, §12.001,
which provides the board with authority to adopt rules for the performance
of every duty imposed by law upon the board, the department, and commissioner
of health. The General Appropriations Act, House Bill 1, Article IX, Rider
167, passed by the 75th Legislature is implemented by this adoption.
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 June
26, 1999.
TRD-9904464
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: August 15, 1999
Proposal publication date: May 7, 1999
For further information, please call: (512) 458-7236
Subchapter J. Advisory Committee
25 TAC §265.131
The Texas Department of Health (department) adopts new §265.131
concerning the Sanitarian/Code Enforcement Officers' Advisory Committee (committee)
without changes to the proposed text as published in the May 7, 1999, issue
of the
Texas Register
(24 TexReg 3453), and
therefore the section will not be republished. The committee provides advice
to the Texas Board of Health (board) in the area of rules regarding registered
professional sanitarians and code enforcement officers.
In 1993, the Texas Legislature passed Senate Bill 383 (now codified in
the Government Code, Chapter 2110), which requires that each state agency
adopt rules on advisory committees. The rules must state the purpose and tasks
of the committee, describe the manner in which the committee will report to
the agency, and establish a date on which the committee will be automatically
abolished unless the governing body of the agency affirmatively votes to continue
the committee's existence.
In 1995, the board established a rule, §337.182, relating to the Sanitarian/Code
Enforcement Officers' Advisory Committee. The rule states that the committee
will automatically be abolished on September 1, 1999. The board has now reviewed
and evaluated the committee and has determined that the committee should continue
in existence until September 1, 2003. However, the rule currently found in
Chapter 337 of this title on water hygiene should be moved to Chapter 265
on general sanitation. The existing rule at §337.182 is being repealed
so that it can be replaced by new §265.131.
This section incorporates existing provisions in §337.182 relating
to the operation of the committee. In addition, language is revised to delete
the reference to the repealed law on the sanitarians' advisory committee;
to reference the Government Code; to continue the committee until September
1, 2003; to change the composition of the committee; to clarify that members
holdover until their replacement is appointed; to state that the presiding
and assistant presiding officers shall be appointed by the chairman of the
board for a term of two years; to allow a temporary vacancy in the office
of assistant presiding officer to be filled by vote of the committee until
appointment by the chairman of the board occurs; to clarify that the committee
is prohibited from holding an executive session (closed meeting) for any reason;
to clarify that the committee and its members may not participate in legislative
activity in the name of the board, the department, or the committee except
with certain approval; to require the committee's annual report in September
rather than August; and to reference reimbursement for a committee member's
expenses if authorized by the General Appropriations Act or budget execution
process. Other minor language changes were made for clarification. These changes
will clarify procedures for the committee and emphasize the advisory nature
of the committee.
The following comments were received concerning the proposed section. Following
each comment is the department's response and any resulting change(s).
Comment: Concerning §265.131(f), the commenter stated there should
be two separate committees - one relating to sanitarians composed of six registered
sanitarians and three consumers and one relating to code enforcement officers
composed of six code enforcement officers and three consumers. The commenter
stated that it is not fair to either profession to have a larger number of
members from other professions on their advisory committee and that the proposed
composition would relegate sanitarians to a minority role.
Response: The department disagrees. The composition of the existing committee
is two consumers, two code enforcement officers, and five registered sanitarians.
The new composition would be three of each. This does not create a larger
number from one profession than another or relegate either profession to a
minority role. In addition, the costs associated with staffing two committees
would not be justified. No change was made as a result of this comment.
Comment: The commenter expressed concerns that committee members are selected
to meet specific regional, ethnic and gender composition and that department
employees may not apply for or serve on advisory committees. The commenter
stated that qualified individuals who express a desire to serve, regardless
of employer, location, race, creed, gender, religion, national origin, age,
physical condition, or economic status, should have an equal chance to serve.
The commenter advocated random drawing of members from a pool of all interested
applicants.
Response: The department disagrees. The General Appropriation Act, Article
1X, Rider 125 requires agencies to attempt to appoint members of advisory
bodies so as to represent the gender composition, minority populations, and
geographic regions of the state. This provision and the board's interest is
furthering diversity of its advisors through diversity among members of its
advisory committees have led the board to consider such information in making
its appointments. In addition department employees could apply to serve on
the committee; however, service on the committee, if unrelated to the employee's
job duties, could not interfere with those duties. Department employees whose
duties relate to the work of this committee might not be appointed to the
committee itself since the dual role of staff and committee member would lessen
the number of persons from whom the board receives input on the regulation
of sanitarians and code enforcement officers. No change was made as a result
of this comment.
Comment: Concerning §265.131(p), the commenter endorsed the section
addressing reimbursement of members' expenses.
Response: Section 265.131(p) only allows reimbursement if authorized by
the General Appropriations Act or budget execution process. The recently passed
appropriations act does not authorize reimbursement, nor has the budget execution
process authorized reimbursement. No change was made as a result of this comment.
The commenter was the Texas Environmental Health Association.
The new section is adopted under the Health and Safety Code,
§11.016, which allows the board to establish advisory committees; the
Government Code, Chapter 2110, which sets standards for the evaluation of
advisory committees by the agencies for which they function; and the Health
and Safety Code, §12.001, which provides the board with authority to
adopt rules for the performance of every duty imposed by law upon the board,
the department, and commissioner of health.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on July
26, 1999.
TRD-9904481
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: August 15, 1999
Proposal publication date: May 7, 1999
For further information, please call: (512) 458-7236
Subchapter C. Texas Regulations for Control of Radiation
25 TAC §289.130
The Texas Department of Health (department) adopts an amendment
to §289.130, concerning the Radiation Advisory Board (advisory board)
with changes to the proposed text as published in the May 7, 1999, issue of
the
Texas Register
(24 TexReg 3455). The advisory
board provides advice to the Texas Board of Health (board), the Texas Natural
Resource Conservation Commission, the Railroad Commission, and other state
agencies in the area of state radiation policies and programs. The advisory
board is required by the Health and Safety Code, Chapter 401.
In 1993, the Texas Legislature passed Senate Bill 383 (now codified in
the Government Code, Chapter 2110), which requires that each state agency
adopt rules on advisory committees. The rules must state the purpose and tasks
of the committee, describe the manner in which the committee will report to
the agency, and establish a date on which the committee will be automatically
abolished unless the governing body of the agency affirmatively votes to continue
the committee's existence. The advisory board is subject to Chapter 2110.
In 1995, the board established a rule relating to the Radiation Advisory
Board. The rule states that the advisory board will automatically be abolished
on September 1, 1999. The board has now reviewed and evaluated the advisory
board and has determined that the advisory board should be reviewed by September
1, 2003, to determine whether a recommendation should be made to appropriate
government officials, such as the governor or the heads of other state agencies,
to continue the advisory board, consolidate the advisory board with another
one, or abolish the advisory board.
This section amends provisions relating to the operation of the advisory
board. Specifically, language is revised to reference the Government Code;
to articulate the duties of the advisory board under the Health and Safety
Code, §401.019; to require review of the committee by September 1, 2003;
to clarify that members holdover until their replacement is appointed; to
recognize the Governor's authority to appoint the chairman as of September
1, 1999, due to amendment to the Health and Safety Code, §401.016, by
Acts 1999, 76th Legislature, Chapter , Section 9.03 (House Bill 2085); to
include the requirements in the Health and Safety Code, §401.018 on calling
a meeting; to clarify that the advisory board is prohibited from holding an
executive session (closed meeting) for any reason; to clarify that the advisory
board and its members may not participate in legislative activity in the name
of the board or the department except with certain approval; to require the
advisory board's annual report in September rather than August; and to reference
reimbursement for an advisory board member's expenses if authorized by the
General Appropriations Act. Other minor changes were made for clarification.
These changes will clarify procedures for the advisory board.
The department is making the following change due to the amendment of the
Health and Safety Code, §401.016.
Change: Concerning §289.130(h) the language is revised to recognize
that the Governor will appoint the chairman of the advisory board as of September
1, 1999.
The following comments were received concerning the proposed section. Following
each comment is the department's response and any resulting change(s).
Comment: Concerning §289.130 in general, a commenter stated that the
rule may set an unfavorable precedent whereby the advisory board advice or
positions that are not in line with board policies may result in further restrictions
on advisory board activities. The rules do not appear to provide any constructive
change to the way the advisory board operates, other than to restrict its
independent role and viewpoints.
Response: The department disagrees. The rule does not restrict the viewpoints
or advisory capacity of the advisory board. The rule is being implemented
in part due to the requirements in the Government Code, Chapter 2110 relating
to advisory committees which advise state agencies. The advisory board is
recognized as being subject to Chapter 2110 by the legislature in its biennial
appropriations for reimbursement of the members' expenses. No change was made
as a result of the comment.
Comment: Concerning §289.130 in general, a commenter asked if the
advisory board is an advisory board to the board or a statewide advisory board
administratively attached to the board for funding and resources purposes.
Response: The advisory board is established by Health and Safety Code,
Chapter 401. Sections 401.019 and 401.020 clearly reflect the advisory nature
of the advisory board. It is advisory on statewide issues to the board and
other state agencies such as the Texas Railroad Commission and the Texas Natural
Resources Conservation Commission. The advisory board is funded through appropriations
to the department. No change was made as a result of the comment.
Comment: Concerning §289.130 in general, a commenter asked if the
other agencies that the advisory board advises have been consulted on the
need for and appropriateness of the amendments and what the responses have
been.
Response: The other agencies have been advised of and are aware of the
amendments but have submitted no comments on the rule. No change was made
as a result of the comment.
Comment: Concerning §289.130(d), a commenter noted that there is no
apparent basis for the distinction between §289.130(d)(1) and (2). Section
289.130(d)(1) refers only to the department and the board. Section 289.130(d)(2)
refers to all the agencies which the advisory board advises. The commenter
suggested that both paragraphs should be combined.
Response: The department disagrees. Section 289.130(d)(2) reflects the
statutory duties of the advisory board found in the Health and Safety Code,
§401.019. Subsection (d)(1) provides clarification that advice to the
department under §401.019 is advice to the board and the department's
radiation program. No change was made as a result of this comment.
Comment: Concerning §289.130(f), a commenter asked how the appointment
of the advisory board members differs from appointment of members to other
board advisory boards and where this jurisdiction is described in Texas regulation.
Response: In accordance with Health and Safety Code, §401.015(a),
members of the advisory board are appointed by the governor. Members of most
board advisory boards are appointed by the board although the governor also
appoints members to the department's Home and Community Support Services Advisory
Council. No change was made as a result of the comment.
Comment: Concerning §289.130(i)(3), two commenters expressed concern
that the rule states that the advisory board is not a governmental body, yet
the provisions of the Texas Government Code, Chapter 551, concerning open
meetings of governmental bodies are being applied. However, the provisions
that allow governmental bodies to conduct closed meetings are specified as
an exception and therefore, do not apply to the advisory board. The commenters
stated that the provisions for closed meetings should apply if the other provisions
concerning governmental bodies are being applied.
Response: The department believes that advisory board activities should
be open and available to the public in order to promote public participation.
The grounds for closed meetings that are listed in the Texas Government Code,
Chapter 551 include such activities as deliberation concerning the purchase
of real property under certain conditions; deliberation of personnel actions
such as appointment, discipline, or dismissal; and private consultation with
an attorney concerning pending or contemplated litigation. These issues do
not apply to the advisory board in its advisory capacity. Therefore, there
should be no reason for the advisory board to go into a closed meeting. No
change was made as a result of the comments.
The amendment is adopted under the Health and Safety Code, Chapter
401, which addresses the advisory board; Health and Safety Code, §11.016,
which allows the board to establish advisory committees; the Government Code,
Chapter 2110, which sets standards for the evaluation of advisory committees
by the agencies for which they function; and the Health and Safety Code, §12.001,
which provides the board with authority to adopt rules for the performance
of every duty imposed by law upon the board, the department, and commissioner
of health.
§289.130.Radiation Advisory Board.
(a)
(No change.)
(b)
Applicable law. The board is subject to the Government
Code, Chapter 2110, concerning state agency advisory committees.
(c)
Purpose. The purpose of the board is to provide advice
to the Texas Board of Health, the Texas Department of Health's (department)
radiation program, the Texas Natural Resource Conservation Commission, the
Railroad Commission, and other state agencies in the area of state radiation
policies and programs.
(d)
Tasks.
(1)
The board shall advise the Texas Board of Health and the
department's radiation program concerning rules relating to state regulation
of radiation.
(2)
The board shall:
(A)
review and evaluate policies and programs of the state
relating to radiation;
(B)
make recommendations and furnish technical advice as may
be required on matters relating to development, use, and regulation of sources
of radiation to the department, the Texas Natural Resource Conservation Commission,
the Railroad Commission of Texas, and other state agencies; and
(C)
review proposed rules and guidelines of any state agency
relating to regulation of sources of radiation and recommend changes in proposed
or existing rules and guidelines relating to sources of radiation.
(e)
Review and duration. By September 1, 2003, the Texas Board
of Health will initiate and complete a review of the board to determine whether
a recommendation should be made to appropriate government officials to continue
the board, consolidate the board with another advisory board or committee,
or abolish the board.
(f)
(No change.)
(g)
Terms of office. The term of office of each member shall
be six years. Members shall serve after expiration of their term until a replacement
is appointed.
(1)-(2)
(No change.)
(h)
Officers. The board shall elect a chairman, vice-chairman
and secretary at its first meeting after August 31st of each year. As of September
1, 1999, the governor shall designate the chairman to serve at the will of
the governor.
(1)-(4)
(No change.)
(i)
Meetings. The board shall meet quarterly on dates set by
the board to conduct board business.
(1)
A special meeting may be called by the chairman or at least
five members of the board.
(2)
(No change.)
(3)
The advisory board is not a ''governmental body''
as defined in the Open Meetings Act. However, in order to promote public participation,
each meeting of the board shall be announced and conducted in accordance with
the Open Meetings Act, Texas Government Code, Chapter 551, with the exception
that the provisions allowing executive sessions shall not apply.
(4)-(7)
(No change.)
(j)
Attendance. Members shall attend board meetings as scheduled.
Members shall attend meetings of subcommittees to which the member is assigned.
(1)-(3)
(No change.)
(k)
(No change.)
(l)
Procedures. Roberts Rules of Order, Newly Revised, shall
be the basis of parliamentary decisions except where otherwise provided by
law or rule.
(1)-(4)
(No change.)
(5)
Minutes of each board meeting shall be taken by department
staff.
(A)
A summary of the meeting shall be provided to the Texas
Board of Health and each member of the board within 30 days of each meeting.
(B)
(No change.)
(m)
Subcommittees. The board may establish subcommittees as
necessary to assist the board in carrying out its duties.
(1)
The chairman shall appoint members of the board to serve
on subcommittees and to act as subcommittee chairpersons. The chairman may
also appoint nonmembers of the board to serve on subcommittees as the need
for additional expertise arises.
(2)
(No change.)
(3)
A subcommittee chairperson shall make regular reports
to the board at each board meeting or in interim written reports as needed.
The reports shall include an executive summary or minutes of each subcommittee
meeting.
(n)
Statement by members.
(1)
The Texas Board of Health, the department, and the board
shall not be bound in any way by any statement or action on the part of any
board member except when a statement or action is in pursuit of specific instructions
from the Texas Board of Health, department, or board.
(2)
The board and its members may not participate in legislative
activity in the name of the Texas Board of Health or the department except
with approval through the department's legislative process. Board members
are not prohibited from representing themselves or other entities in the legislative
process.
(o)
Reports to Texas Board of Health. The board shall file
an annual written report with the Texas Board of Health.
(1)
The report shall list the meeting dates of the board and
any subcommittees, the attendance records of its members, a brief description
of actions taken by the board, a description of how the board has accomplished
the tasks given to the board by the Texas Board of Health, the status of any
rules which were recommended by the board to the Texas Board of Health, and
anticipated activities of the board for the next year.
(2)
The report shall identify the costs related to the
board's existence, including the cost of department staff time spent in support
of the board's activities.
(3)
The report shall cover the meetings and activities
in the immediate preceding 12 months and shall be filed with the Texas Board
of Health each September. It shall be signed by the chairman and appropriate
department staff.
(p)
Reimbursement for expenses. In accordance with the requirements
set forth in the Government Code, Chapter 2110, a board member may receive
reimbursement for the member's expenses incurred for each day the member engages
in official board business.
(1)
No compensatory per diem shall be paid to board members
unless required by law, but members shall be reimbursed for travel, meals,
lodging, and incidental expenses in accordance with the General Appropriations
Act.
(2)-(5)
(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 July
26, 1999.
TRD-9904471
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: August 15,1999
Proposal publication date: May 7, 1999
For further information, please call: (512) 458-7236
Subchapter A. Hazard Communication
25 TAC §295.10
The Texas Department of Health (department) adopts the repeal
of §295.10, concerning the Hazard Communication Act Advisory Committee
(committee) without changes to the proposed repeal as published in the May
7, 1999, issue of the
Texas Register
(24 TexReg
3457), and therefore the repeal will not be republished. The committee has
provided advice to the Texas Board of Health (board) in the area of hazard
communication and provided guidance on rules, program policies and outreach
documents pertaining to the Texas Hazard Communication Act.
In 1993, the Texas Legislature passed Senate Bill 383 (now codified in
the Government Code, Chapter 2110) which requires that each state agency adopt
rules on advisory committees. The rules must state the purpose of the committee,
describe the tasks of the committee, describe the manner in which the committee
will report to the agency, and establish a date on which the committee will
be automatically abolished unless the governing body of the agency affirmatively
votes to continue the committee's existence.
In 1995, the board established a rule relating to the Hazard Communication
Act Advisory Committee. The rule states that the committee will automatically
be abolished on September 1, 1999. The board has now reviewed and evaluated
the committee and has determined that the committee should be abolished. Issues
relating to the type of advice previously provided by the committee may be
addressed through the establishment of ad hoc committees.
In addition, the General Appropriations Act, House Bill 1, Article IX,
Rider 167, passed by the 75th Legislature, requires each state agency to review
and consider for readoption each rule adopted by that agency pursuant to the
Government Code, Chapter 2001 (Administrative Procedure Act). Section 295.10
has been reviewed and the department has determined that the reasons for adopting
the section no longer exist.
The department published a Notice of Intention to Review this section as
required by Rider 167 in the
Texas Register
(23 Tex Reg 9079) on September 4, 1998. No comments were received by the department
following that notice.
No comments were received on the proposal during the comment period.
The repeal is adopted under the Health and Safety Code, §11.016,
which allows the board to establish advisory committees; the Government Code,
Chapter 2110, which sets standards for the evaluation of advisory committees
by the agencies for which they function; and the Health and Safety Code, §12.001,
which provides the board with authority to adopt rules for the performance
of every duty imposed by law upon the board, the department, and the commissioner
of health. The General Appropriations Act, House Bill 1, Article IX, Rider
167, passed by the 75th Legislature is implemented by this adoption.
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 July
26, 1999.
TRD-9904465
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: September 15, 1999
Proposal publication date: May 7, 1999
For further information, please call: (512) 458-7236
25 TAC §295.73
The Texas Department of Health (department) adopts an amendment
to §295.73, concerning the Asbestos Advisory Committee (committee) without
changes to the proposed text as published in the May 7, 1999, issue of the
In 1993, the Texas Legislature passed Senate Bill 383 (now codified in
the Government Code, Chapter 2110), which requires that each state agency
adopt rules on advisory committees. The rules must state the purpose and tasks
of the committee, describe the manner in which the committee will report to
the agency, and establish a date on which the committee will be automatically
abolished unless the governing body of the agency affirmatively votes to continue
the committee's existence.
In 1995, the board established a rule relating to the Asbestos Advisory
Committee. The rule states that the committee will automatically be abolished
on September 1, 1999. The board has now reviewed and evaluated the committee
and has determined that the committee should continue in existence until September
1, 2003.
This section amends provisions relating to the operation of the committee.
Specifically, language is revised to reference the Health and Safety Code,
§11.016 and the Government Code; to continue the committee until September
1, 2003; to increase consumer members from three to four, therefore, reducing
nonconsumers from nine to eight; to clarify that members holdover until their
replacement is appointed; to state that the presiding and assistant presiding
officers shall be appointed by the chairman of the board for a term of two
years; to allow a temporary vacancy in the office of assistant presiding officer
to be filled by vote of the committee until appointment by the chairman of
the board occurs; to clarify that the committee is prohibited from holding
an executive session (closed meeting) for any reason; to clarify that the
committee and its members may not participate in legislative activity in the
name of the board, the department, or the committee except with certain approval;
to require the committee's annual report in September rather than August;
and to reference reimbursement for a committee member's expenses if authorized
by the General Appropriations Act or budget execution process. Other minor
language changes were made for clarification. These changes will clarify procedures
for the committee and emphasize the advisory nature of the committee.
No comments were received on the proposal during the comment period.
The amendment is adopted under the Health and Safety Code, §11.016,
which allows the board to establish advisory committees; the Government Code,
Chapter 2110, which sets standards for the evaluation of advisory committees
by the agencies for which they function; and the Health and Safety Code, §12.001,
which provides the board with authority to adopt rules for the performance
of every duty imposed by law upon the board, the department, and commissioner
of health.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on July
26, 1999.
TRD-9904463
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: September 15, 1999
Proposal publication date: May 7, 1999
For further information, please call: (512) 458-7236
Subchapter D. Registration of Professional Sanitarians
Subchapter N. Personnel Policies and Procedures
Chapter 61.
Chronic Diseases
Chapter 115.
Home and Community Support Services Agencies
Chapter 130.
Code Enforcement Registry
Chapter 143.
Medical Radiologic Technologists
Chapter 229.
Food and Drug
Subchapter N. Current Good Manufacturing Practice and Good Warehousing Practice in Manufacturing, Packing, or Holding Human Food
Subchapter O. Licensing of Wholesale Distributors of Drugs - Including Good Manufacturing Practices
Subchapter X. Licensing of Device Distributors and Manufacturers
Chapter 265.
General Sanitation
Chapter 289.
Radiation Control
Chapter 295.
Occupational Health
Subchapter C. Texas Asbestos Health Protection
Chapter 337.
Water Hygiene