Part 3.
TEXAS COMMISSION ON ALCOHOL AND DRUG ABUSE
Chapter 142.
INVESTIGATIONS AND HEARINGS
40 TAC §§142.11, 142.21, 142.22, 142.31, 142.32
The Texas Commission on Alcohol and Drug Abuse proposes the
repeal of §§142.11, 142.21, 142.22, 142.31, and 142.32 concerning
Investigations and Hearings. These sections contain definitions, information
on complaints and investigations, information regarding investigations of
abuse or neglect of children, the elderly or the disabled, procedures for
facility and chemical dependency counselor disciplinary hearings, and administrative
penalties. The repeal is proposed because extensive changes in these rules
made it more feasible to repeal the entire chapter and propose a new one concurrently.
Jay Kimbrough, Executive Director, has determined that for the first five-year
period the repeal is in effect there will be no fiscal implications for state
or local government as a result of the proposed repeals.
Mr. Kimbrough has also determined that for each year of the first five
years the repeal is in effect the anticipated public benefit will be elimination
of unnecessary rules. There will be no effect on small businesses. There is
no anticipated economic cost to current providers.
Comments on the proposal may be submitted to Tamara Allen, Rules Manager,
Texas Commission on Alcohol and Drug Abuse, P.O. Box 80529, Austin, Texas
78708-0529. Comments must be received no later than 30 days from the date
the proposal is published in the
Texas Register.
(Editor's note: The text of the following sections proposed
for repeal will not be published. The sections may be examined in the offices
of the Texas Commission on Alcohol and Drug Abuse or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the Texas Health and Safety Code,
Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse
with the authority to adopt rules and standards for the licensure of chemical
dependency treatment facilities and under Texas Occupations Code, Chapter
504, which provides the commission with the authority to establish procedures
for the licensure of chemical dependency counselors.
The codes affected by the proposed repeals are the Texas Health and Safety
Code, Chapter 464 and Texas Occupations Code, Chapter 504.
§142.11.Definitions.
§142.21.Complaints and Investigations.
§142.22.Investigations of Abuse or Neglect of Children, the Elderly, or the Disabled.
§142.31.Procedure for Facility and Chemical Dependency Counselor Disciplinary Hearings.
§142.32.Administrative Penalties.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State, on August 9, 2000.
TRD-200005533
Karen Pettigrew
General Counsel
Texas Commission on Alcohol and Drug Abuse
Earliest possible date of adoption: September 24, 2000
For further information, please call: (512) 349-6733
The Texas Commission on Alcohol and
Drug Abuse proposes new §§142.11, 142.21, 142.31 and 142.32 concerning
Investigations and Hearings. These sections contain definitions and information
regarding complaints and investigations, the procedure for contested cases
for counselor and facility licenses, and administrative penalties for licensed
facilities and counselors.
These new sections are proposed to establish the processes for investigations
and hearings for facilities and counselors licensed by the commission. Changes
from the current Chapter 142, which is simultaneously proposed for repeal
include: unnecessary definitions are deleted; two sections on different types
of investigations have been combined into one; unnecessary provisions about
abuse/neglect investigations have been eliminated; the complaint category
definitions now include allegations of fraud or misuse of state funds; circumstances
under which the commission may require an agency to conduct an internal investigation
have been delineated; the rule regarding provider notification has been clarified
to defer notification when it might jeopardize investigation of the complaint;
provisions for default orders are now included; deadlines are now specified
in relation to the effective date of the notice and that is defined as five
days after the date of mailing; the system for determining administrative
penalties has been restructured so that dollar amounts are attached to violations
based on the seriousness of the violation, the number of previous violations,
and the person's history of disciplinary action; administrative penalties
will no longer be reduced if corrective action is taken and repeat violations
will result in substantially higher penalties; there is no longer a provision
for waiving administrative penalties; the base amount assessed for a Category
B violation has been reduced from $600 to $500; if a person surrenders the
license in lieu of paying an administrative penalty relicensure is now prohibited
for a two-year period; and, finally, failure to pay an administrative penalty
will result in suspension of the license.
Jay Kimbrough, Executive Director, has determined that for the first five-year
period the rules are in effect there will be no fiscal implications for state
or local government as a result of enforcing the rules.
Mr. Kimbrough has also determined that for each year of the first five
years the rules are in effect the anticipated public benefit will be better
protection of those who access services from persons licensed by the commission
through fair, effective and efficient processes for investigations, administrative
hearings and penalties. There is no additional effect on small businesses.
There is no anticipated economic cost to persons required to comply with the
proposed amendments. Of course, there will be an economic cost to those who
fail to comply with applicable licensure rules and are subsequently assessed
administrative penalties.
Comments on the proposal may be submitted to Tamara Allen, Rules Manager,
Texas Commission on Alcohol and Drug Abuse, P. O. Box 80529, Austin, Texas
78708-0529. Comments must be received no later than 30 days from the date
the proposal is published in the
Texas Register.
These new sections are proposed under the Texas Health and Safety
Code, Chapter 464, which provides the Texas Commission on Alcohol and Drug
Abuse with the authority to adopt rules and standards for the licensure of
chemical dependency treatment facilities and under Texas Occupations Code,
Chapter 504, which provides the commission with the authority to establish
procedures for the licensure of chemical dependency counselors.
The codes affected by the proposed new sections are the Texas Health and
Safety Code, Chapter 464 and Texas Occupations Code, Chapter 504.
§142.11.Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings, unless the context clearly indicates otherwise.
(1)
Administrative hearing - An appeals hearing conducted by
a State Office of Administrative Hearings administrative law judge on behalf
of the commission.
(2)
Board - The commissioners of the Texas Commission on Alcohol
and Drug Abuse.
(3)
Child - A person under the age of 18.
(4)
Commission - The Texas Commission on Alcohol and Drug Abuse.
(5)
Days - Calendar days, unless otherwise specified.
(6)
Disabled person - A person with a mental, physical, or
developmental disability that substantially impairs the person's ability to
provide adequately for the person's care or protection and who is:
(A)
18 years of age or older; or
(B)
under 18 years of age and who has had the disabilities
of minority removed.
(7)
Elderly person - A person 65 years of age or older.
(8)
Executive director - The chief administrative officer of
the commission.
(9)
Person - An individual, partnership, corporation, association,
governmental subdivision or public or private organization that is not a state
agency.
(10)
Respondent - A person against whom the commission seeks
adverse action.
§142.21.Complaints and Investigations.
(a)
A person alleging that a provider or licensee has violated
commission statute or rules may file a complaint with the commission. Complaints
about licensed counselors must be submitted in writing and under oath.
(b)
The commission accepts oral or written reports concerning
acts of abuse or neglect of children, the elderly, or the disabled relating
to persons funded or licensed by the commission.
(1)
When it receives such a report, the commission notifies
any other known agencies which license or fund the alleged perpetrator.
(2)
When it receives a report of abuse or neglect of a child,
the commission also notifies the appropriate state or local law enforcement
agency.
(c)
The commission may initiate an investigation or disciplinary
action against a provider or licensee if it receives information that a violation
has or may have occurred.
(d)
The commission documents, evaluates, and prioritizes complaints
based on the seriousness of the alleged violation and the level of client
or participant risk. The commission uses the following categories.
(1)
Category I: Alleged violations that pose an immediate threat
to the health or safety of individuals receiving prevention, intervention,
or treatment services from persons licensed or funded by the commission.
(2)
Category II: Alleged violations that pose a potential threat
to the health or safety of individuals receiving prevention, intervention,
or treatment services from persons licensed or funded by the commission and
allegations of fraud or misuse of state funds.
(3)
Category III: Alleged violations that do not pose a potential
threat to the health or safety of individuals receiving prevention, intervention,
or treatment services from persons licensed or funded by the commission.
(4)
Category IV: Alleged violations that are not related to
commission rules or funding requirements and are not within the jurisdiction
of the commission.
(g)
The commission will refer complaints outside its jurisdiction
to the appropriate agency for action, as appropriate.
(h)
The commission will conduct a prompt and thorough investigation
of all Category I and Category II complaints, including all allegations of
abuse, neglect, and exploitation.
(i)
The commission will evaluate Category III complaints. Based
on the nature and severity of the alleged incident, the commission will determine
whether to investigate the complaint directly or require the provider or facility
to conduct an internal investigation and submit its findings to the commission.
The results of a provider's internal investigation will be reviewed and may
result in additional investigation by commission staff.
(j)
The commission shall inform the person in writing of the
nature of the complaint unless it would jeopardize the investigation.
(k)
The person under investigation shall provide commission
staff access to all documents, evidence, and individuals related to the alleged
violation, including the results of any internal investigations.
(l)
Until the case is resolved, the commission shall send quarterly
written status reports to all parties.
(m)
The commission shall prepare a complete written report
of its investigative findings and conclusions.
(1)
The commission shall inform the person under investigation
and the complainant of the results of the investigation.
(2)
If the commission has found evidence that a child may have
been abused or neglected, it shall report the evidence to the appropriate
state or local law enforcement agency.
(3)
If the investigation reveals that an elderly or disabled
person has been abused by another person in a manner that constitutes a criminal
offense under any law, including §22.04 Penal Code, the commission shall
submit a copy of the investigative report to the appropriate state or local
law enforcement agency.
§142.31.Procedure for Contested Cases for Counselor and Facility Licenses.
(a)
At any stage of a disciplinary case, the commission and
a respondent may resolve the case by entering into an agreed order.
(b)
The commission, upon investigation/inspection and development
of information indicating that grounds may exist to take disciplinary action,
shall issue a notice of intent notifying the respondent of the proposed action.
(1)
The notice letter shall be sent via regular first-class
and certified mail to the respondent's address of record.
(2)
The notice shall specify:
(A)
the statutes, rules, or orders allegedly violated;
(B)
the factual basis of the alleged violations;
(C)
the disciplinary action the commission intends to take;
and
(D)
notice of an opportunity for a hearing to be held under
Subchapter C, Chapter 2001 of the Texas Government Code.
(3)
If the commission is seeking an administrative penalty,
the letter shall also inform the respondent of the amount of the recommended
penalty and of the opportunity for a hearing on the violation, the amount
of the penalty, or both.
(4)
The letter shall also include the following notices.
(A)
If the respondent does not request a hearing on or before
the 20th day after notice is effective, the allegations will be deemed true
and the commission will issue a default final order implementing the proposed
action.
(B)
If the respondent requests a hearing but fails to appear
at the scheduled hearing, the allegations will be deemed true and the State
Office of Administrative Hearings (SOAH) will recommend a default proposal
for decision to implement the proposed action.
(C)
Notice is effective five days after the date of mailing.
(d)
A respondent must submit a timely written request for a
hearing to avoid having the allegations in the notice letter deemed true and
a default order implementing the proposed action issued by the commission.
The request for hearing is timely if filed with the commission or postmarked
on or before the 20th day after the notice is effective.
(e)
If the respondent fails to request a hearing on or before
the 20th day after effective notice, the factual allegations of the notice
letter may be deemed true and shall form the basis of a default final order
implementing the proposed action.
(f)
If the respondent requests a hearing, the commission may
offer the respondent an optional informal conference with commission staff
prior to the hearing date.
(1)
At the informal conference, the respondent will be given
an opportunity to show compliance with all requirements of statute, rule,
or commission order cited in the notice letter.
(2)
After the informal conference, the commission may withdraw
or amend charges contained in the notice letter, offer the respondent an opportunity
to dispose of the case through an agreed order, or proceed to hearing under
SOAH rules.
(g)
The commission shall send written notice of the hearing
to the respondent's address of record at least ten days before the date of
the hearing. The notice shall include:
(1)
the date, time, place and nature of the hearing;
(2)
a statement of the legal authority and jurisdiction under
which the hearing is to be held;
(3)
a reference to the particular sections of the statutes
and rules involved;
(4)
a short, plain statement of the matters asserted; and
(5)
a statement that if the respondent does not appear at the
hearing, the allegations will be deemed true and the action proposed in the
notice of hearing may be granted by default.
(h)
If the respondent fails to appear at a scheduled SOAH hearing
after being given proper notice of the hearing, SOAH shall issue a proposal
for decision recommending the proposed action.
(i)
If the case is not resolved through an informal hearing
or default decision and goes forward to administrative hearing, the hearing
shall be conducted by an administrative law judge employed by the SOAH and
shall comply with the requirements of the Texas Government Code, Chapter 2001,
Subchapter C and SOAH Rules of Procedure, 1 Texas Administrative Code, Chapter
155.
(1)
At the hearing, parties in attendance shall be allowed
to present evidence, to examine witnesses, to cross-examine adverse witnesses,
to make argument, and to submit legal authority.
(2)
After the hearing, the administrative law judge shall issue
a proposal for decision containing a statement of the reasons for the proposed
decision and of each finding of fact and conclusion of law necessary to the
proposed decision.
(3)
Exceptions to the proposal for decision, if filed, must
be filed with the administrative law judge within 20 days after the date the
proposal for decision is mailed. Replies to the exceptions, if any, must be
filed with the administrative law judge within 30 days after the date the
proposal for decision is mailed.
(j)
The commission's board will consider the proposal for decision
in all matters other than an administrative penalty for a chemical dependency
counselor at a public meeting and issue an order.
(k)
The executive director will consider the proposal for decision
regarding an administrative penalty for a chemical dependency counselor.
(l)
A motion for rehearing, if filed, must be filed in accordance
with the Texas Government Code, Chapter 2001, Subchapter F. When a motion
for rehearing is directed at a default final order, the motion must be supported
by evidence and address the following factors:
(1)
failure to answer or appear at the hearing was due to an
accident or mistake and was not intentional or the result of a conscious indifference;
(2)
the respondent can present a meritorious defense to the
fact findings and legal conclusions in the order; and
(3)
granting the rehearing will not work any injury to the
commission or its mission.
(m)
The respondent appealing a final order shall pay to the
commission the cost of preparing the original or a certified copy of the record
that is to be transmitted to the reviewing court at rates approved by the
General Services Commission.
§142.32.Administrative Penalties For Licensed Facilities and Counselors.
(a)
Violations are categorized according to the seriousness
of the violation and the actual or potential harm to the health, safety, and
welfare of the public. The commission has established specific guidelines
for assigning categories. These guidelines show how various offenses are categorized,
but do not limit the commission's authority to categorize any particular offense
that is not already included in the guidelines or to modify those offenses
already categorized. These guidelines are available for review on the commission's
website (www.tcada.state.tx.us) and at the commission's administrative offices
at 9001 North IH 35, Suite 105, Austin, Texas, 78753.
(b)
Administrative penalties are not assessed for the most
serious violations, which are assigned to Category A. Instead, the commission
will seek to deny, refuse to renew, revoke or suspend the license.
(c)
The base administrative penalty for a first time offense
is $500 for a Category B violation, $200 for a Category C violation, and $40
dollars for a Category D violation.
(1)
The base administrative penalty is doubled for a second-time
violation and tripled for a third-time violation. If the same violation is
identified four times, the commission may seek to revoke or suspend the license
or assess an administrative penalty of four times the base amount.
(2)
An additional $250 will be assessed if the person's license
has been suspended or revoked during the past five years.
(3)
If the total dollar value of administrative penalties assessed
during a single inspection or investigation is over $5,000 for a facility
or $2,000 for a counselor, the commission may seek to revoke or suspend the
license instead of imposing an administrative penalty.
(d)
The commission may also charge the licensee for any enforcement
costs related to subsequent follow-up compliance visits.
(e)
When administrative penalties are recommended, the executive
director or designee shall report staff findings and recommendations to the
board, including the amount of the recommended penalty.
(f)
The executive director shall give written notice to the
licensee adversely affected. The notice will be by certified mail. The notice
shall include:
(1)
a brief summary of the alleged violations;
(2)
a statement of the amount of the recommended penalty; and
(3)
a notification that the licensee has a right to a hearing
on the occurrence of the violation, the amount of the penalty, or both.
(g)
A request for hearing must be filed in writing within 20
days of the effective date of notice. Notice is effective five days after
mailing.
(h)
Section 142.31 of this chapter apply to these proceedings.
(i)
Failure to pay an administrative penalty will result in
suspension of the license. A licensee who has not paid final administrative
penalties is not eligible for licensure renewal.
(j)
A licensee may surrender the license in lieu of paying
administrative penalties. The licensee may reapply for licensure if:
(1)
administrative penalties are paid prior to application;
and
(2)
two years have passed since the date of surrender.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State, on August 9, 2000.
TRD-200005532
Karen Pettigrew
General Counsel
Texas Commission on Alcohol and Drug Abuse
Earliest possible date of adoption: September 24, 2000
For further information, please call: (512) 349-6733
Chapter 159.
ADMINISTRATIVE RULES AND PROCEDURES
Subchapter A. GENERAL INFORMATION
40 TAC §159.7
The Texas Commission for the Blind proposes new §159.7
concerning payment of shift differentials. Authorization to pay shift differentials
to employees in the vocational rehabilitation program was granted to the Commission
during the 76th Legislature (1999). The section establishes the agency's system
for determining positions eligible to receive shift differential payments
and the rate allowed to be paid.
Alvin Miller, Chief Financial Officer, has determined that the fiscal implications
relating to cost or revenues of the state will not be material each year for
the first five years the rules are in effect. There will be no fiscal implications
on local governments as a result of enforcing or administering the rules.
Mr. Miller has also determined that for each year of the first five years
the rules are in effect the anticipated public benefits will be an increased
pool of individuals applying for jobs within the vocational rehabilitation
program that require the individual to work hours outside the normal work
day. There will be no economic cost to small businesses or individuals as
a result of the rule.
Questions about the content of this proposal may be directed to Jean Crecelius
at (512) 377-0611, and written comments on the proposal may be submitted to
Policy and Rules Coordinator, P.O. Box 12866, Austin, Texas 78711, within
30 days from the date of this publication.
The rule is proposed under the authority of Human Resources Code,
Title 5, Chapter 91, §91.016, which authorizes the Commission to develop
rules and implement policies allowing shift differentials to be paid to employees
in the vocational rehabilitation program.
The proposal affects no other statutes.
§159.7.Payment of Shift Differentials.
(a)
The executive director is authorized to pay a shift differential
to eligible employees in the vocational rehabilitation program. The shift
differential shall be paid in addition to the employee's regular base pay,
exclusive of longevity and benefit replacement pay.
(b)
The executive director is authorized to determine the agency
positions which are eligible to receive shift differential payments. The rate
of payment shall be a percentage of the employee's monthly regular base pay,
not to exceed the maximum allowed by state law, in relation to the number
of hours the employee regularly works outside the work hours of Monday through
Friday, 8:00 a.m. to 5:00 p.m.
(c)
This section shall not apply to those employees whose work
hours have been adjusted according to agency policies concerning staggered
work hours.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on August 11, 2000.
TRD-200005603
Terrell I. Murphy
Executive Director
Texas Commission for the Blind
Earliest possible date of adoption: September 24, 2000
For further information, please call: (512) 377-0611
Subchapter A. VOCATIONAL REHABILITATION AND INDEPENDENT LIVING PROGRAMS
40 TAC §161.24
The Texas Commission for the Blind proposes the amendment
of §161.24, pertaining to witness fees. The amendment is needed to update
the TAC citation included in the rule that has subsequently been repealed
and adopted under a new section number.
Alvin Miller, Chief Financial Officer, has determined that for the first
five-year period the rule is in effect there will be no foreseeable implications
relating to cost or revenues of the state or local governments as a result
of enforcing or administering the rules.
Mr. Miller has also determined that for each year of the first five years
the rules are in effect the anticipated public benefits will be current references
for public reference. There will be no economic cost to small businesses or
individuals as a result of the rule.
Questions about the content of this proposal may be directed to Jean Crecelius
at (512) 377-0611, and written comments on the proposal may be submitted to
Policy and Rules Coordinator, P. O. Box 12866, Austin, Texas 78711, within
30 days from the date of this publication.
The amendment is proposed under the authority of Human Resources
Code, Title 5, Chapter 91, §91.011, which authorizes the Commission to
adopt rules prescribing the policies and procedures followed by the commission
in the administration of its programs.
The proposal affects no other statute.
§161.24.Witness Fees.
(a)
Any witness or deponent who is not a party to and who is
subpoenaed or otherwise appears at any hearing or proceeding at the instance
of the Commission is entitled to receive reimbursement according to
§159.3
[
(b)-(c)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on August 11, 2000.
TRD-200005621
Terrell I. Murphy
Executive Director
Texas Commission for the Blind
Earliest possible date of adoption: September 24, 2000
For further information, please call: (512) 377-0611
Subchapter C. VOCATIONAL REHABILITATION SERVICES
40 TAC §163.35
The Texas Commission for the Blind proposes amendments to §163.35
of the agency's vocational rehabilitation program rules pertaining to occupational
licenses, tools, equipment, and initial stocks and supplies. The amendments
clarify items that are not considered as equipment and are not purchased for
consumers as a part of an individualized plan for employment. The amendments
also clarify that the consumer may not sell or otherwise voluntarily relinquish
possession of tools and equipment provided to the consumer at state and federal
expense.
Alvin Miller, Chief Financial Officer, has determined that there will be
no foreseeable implications relating to cost or revenues of the state or local
governments as a result of enforcing or administering the rules.
Mr. Miller has also determined that for each year of the first five years
the rules are in effect the anticipated public benefits will be increased
clarity in the agency's rules pertaining to services the agency is authorized
to purchase during a consumer's rehabilitation plan. There will be no economic
cost to small businesses or individuals as a result of the rule.
Questions about the content of this proposal may be directed to Jean Crecelius
at (512) 377-0611, and written comments on the proposal may be submitted to
Policy and Rules Coordinator, P. O. Box 12866, Austin, Texas 78711, within
30 days from the date of this publication.
The amendment is proposed under the authority of Human Resources
Code, Title 5, Chapter 91, Section 91.011(h), which allows the agency to adopt
rules prescribing the policies and procedures followed by the Commission in
the administration of its programs.
The proposal affects no other statutes.
§163.35.Occupational Licenses, Tools, Equipment, and Initial Stocks and Supplies.
(a)
Occupational licenses are any licenses, permits, fees for
examinations for licenses, or other written authorities required by state,
city, or other government units to practice an occupation or enter a small
business. State and municipal tax assessments on occupations are not included.
(b)
Tools must be needed or required to participate in the
consumer's training program or for entry into an employment situation and
include only those tools normally provided to workers with visual impairments
in the same or a similar trade or profession.
(c)
Equipment includes fixtures, apparatuses, machinery, or
appliances normally found in a place of business that are necessary to carry
out the requirements of the business in an efficient manner.
Examples
of items not considered as equipment are firearms, permanent structure buildings,
land, aircraft, operating capital, operating cost, vehicles, trailers, boats,
or other items requiring a Certificate of Title to be used on public roads,
highways, or waterways.
[
(d)
Initial stocks and supplies are the initial goods necessary
for direct resale or for further preparation for direct resale, either on
a wholesale or retail basis, by a consumer entering into a self-employment
enterprise. Such merchandise is limited to the amount necessary to start the
business.
(e)
The consumer may not sell, give away, or otherwise
voluntarily relinquish possession of any tools, equipment, or nonconsumable
supplies issued to the consumer during the rehabilitation process.
[
(f)
The consumer must take reasonable care of tools, equipment,
and supplies provided by the commission and shall be liable for its loss and
damage resulting from wrongful act or neglect.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on August 11, 2000.
TRD-200005610
Terrell I. Murphy
Executive Director
Texas Commission for the Blind
Earliest possible date of adoption: September 24, 2000
For further information, please call: (512) 377-0611
Subchapter A. GENERAL INFORMATION
40 TAC §§164.1-164.3
The Texas Commission for the Blind is proposing several changes
to rules in Chapter 164 pertaining to administration of the Independent Living
Program. These changes are being proposed as a result of the agency's review
of all chapter rules under its rule review plan adopted in accordance with
the Appropriations Act, Article IX, §167, passed by the 75th Texas Legislature
(1997), and now found in Article IX, §9-10.13, passed by the 76th Texas
Legislature (1999).
Section 164.1, pertaining to a statement of the program's purpose, is being
amended to clarify language that may be interpreted erroneously as limiting.
Section 164.2, pertaining to a statement of legal authority for the program,
is amended into proper rule form. Section 164.3, pertaining to definitions,
has been amended by adding needed definitions, deleting terms no longer used
in the rules or that do not have chapter-wide application, and amending terms
not consistent with federal definitions. Section 164.10 is being amended to
simplify application procedures. Section 164.11 is being repealed and simultaneously
being replaced with a new §164.11 that has been rewritten consistent
with federal eligibility regulations. Section 164.13 is being amended to add
the federal requirement that consumers be notified about the state's Client
Assistance Program when determined to be ineligible for services and to delete
a provision requiring a periodic review of ineligibility which is not required
in federal regulations. Section 164.25 is being amended by eliminating references
to an order of selection because the order of selection is being simultaneously
proposed for repeal. This section is also being amended by eliminating references
to other subchapters and substituting the applicable section numbers for clarity.
Section 164.26 is being amended by removing subsection (a) because the provision
is covered within the definitions. Sections 164.30-164.32, pertaining to an
order of section, are being repealed. The agency has not had occasion to implement
this order of selection and it no longer serves a useful purpose as it is
written. Section 164.41 is being amended by adding training in management
of secondary disabilities or related health conditions to the services excepted
from financial participation. Adding this exception will allow consistent
application of financial participation across agency programs. Section 164.43
is being amended to clarify that the income of only those members of the family
who have a legal obligation of support for the consumer will be taken into
consideration in determining monthly income. Section 164.45 is being amended
by adding disability-related expenses, rent or home mortgage payments, and
family obligations imposed by court order to the costs subtracted from monthly
income to arrive at net monthly income for consistent application across programs.
Alvin Miller, Chief Financial Officer, has determined that there will be
no foreseeable implications relating to cost or revenues of the state or local
governments as a result of enforcing or administering the rules.
Mr. Miller has also determined that for each year of the first five years
the rules are in effect the anticipated public benefits will be increased
clarity in the agency's rules pertaining to independent living services the
agency is authorized to provide to consumers under the federal program. There
will be no economic cost to small businesses or individuals as a result of
the rule.
Questions about the content of the proposals may be directed to Jean Crecelius
at (512) 377-0611, and written comments on the proposals may be submitted
to Policy and Rules Coordinator, P.O. Box 12866, Austin, Texas 78711, within
30 days from the date of this publication.
The rules are proposed under the authority of Human Resources
Code, Title 5, Chapter 91, §91.011(h), which allows the agency to adopt
rules prescribing the policies and procedures followed by the Commission in
the administration of its programs.
The proposal affects no other statutes.
§164.1.Program Purpose.
The Independent Living Program is a joint state-federal funded program
administered by the Commission to assess, plan, develop, and provide independent
living services
to persons eligible under federal and state guidelines
[
§164.2.Conformity to Federal Requirements.
The rules in this chapter
are intended to
comply with [
[
the Rehabilitation Act of 1973 as amended
(29 United States Code, §§701 et seq.);
[
implementing federal regulations (34 Code
of Federal Regulations, Parts 364, 365, 366 and 367); and
[
the state plan for independent living submitted
to and approved by the federal government[
§164.3.Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings unless the context clearly indicates otherwise.
(1)
Act--The Rehabilitation Act of 1973, as amended.
(2)
[
[
Blind (person who is)--A person whose visual
acuity with best correction is 20/200 or less in the better eye, or a person
with a limitation in the field of vision such that the widest diameter of
the visual field subtends an angle no greater than 20 degrees, which means
a visual field of no greater than 20 degrees in the better eye.
(3)
[
(4)
[
(5)
Disability--A physical or mental
impairment that substantially limits one or more major life activities.
(6)
Family--The consumer, parent(s), and/or legal guardian(s)
and all individuals residing in the household for whom the consumer, parent(s)
and/or legal guardian(s) have legal and[
(7)
Independent Living Plan (IL Plan)--A written record that
documents all phases of the consumer's rehabilitation process as developed
by the independent living worker and the consumer.
(8)
Individual with a
significant
[
[
Progressive eye condition--A
visual condition that if left untreated may lead to a bilateral condition
of blindness.]
(9)
[
[
Severe visual disability--A
significant visual loss, or a potentially significant visual loss due to a
progressive eye condition as documented by medical evidence, that limits the
functional ability of an individual.]
(10)
[
(11)
[
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State, on August 11, 2000.
TRD-200005604
Terrell I. Murphy
Executive Director
Texas Commission for the Blind
Earliest possible date of adoption: September 24, 2000
For further information, please call: (512) 377-0611
40 TAC §§164.10, 164.11, 164.13
The amendments and new section are proposed under the authority
of Human Resources Code, Title 5, Chapter 91, §91.011(h), which allows
the agency to adopt rules prescribing the policies and procedures followed
by the Commission in the administration of its programs.
The proposal affects no other statutes.
§164.10.Application.
(a)
To apply for independent living services, a person
or the person's representative may contact the commission office closest to
them and provide the name of the person seeking services, an address where
the person resides, and a telephone number, if the person has a telephone.
[
(b)
Persons residing in institutions, such as state schools,
state hospitals, or prisons, may apply for services when their release is
expected within 60 days.
§164.11.Eligibility.
(a)
Independent living services are available to individuals
with a significant disability as the term is defined in §164.3 of this
title, relating to definitions.
(b)
The Commission shall apply eligibility requirements without
regard to the individual's age, color, creed, gender, national origin, race,
religion, or length of time present in Texas.
§164.13.Ineligibility Determination.
(a)
Prior to making a determination of ineligibility, the commission
shall consult with or provide a clear opportunity for consultation with the
applicant or, in appropriate cases, the applicant's representative.
(b)
The commission shall inform the applicant or the applicant's
representative, in appropriate cases, in writing, or by special mode of communication
if designated by the applicant, of an ineligibility determination, including
the reasons for the determination, the requirements under this chapter, and
the means by which the applicant may appeal the decision.
The notice
shall also include information on how to contact the Client Assistance Program
in Texas. If appropriate, the Commission shall refer the applicant to other
agencies and facilities.
(c)
The commission shall review an ineligibility determination
within 12 months unless the person has refused the review, the person is no
longer present in Texas, the person's whereabouts are unknown, or the person's
medical condition is rapidly progressive or terminal.
[
In the case of an ineligibility
determination subsequent to the provision of services under an independent
living plan based on a determination that the person is incapable of achieving
an independent living outcome, the commission shall review the ineligibility
determination annually thereafter only if requested by the person or the person's
representative.]
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State, on August 11, 2000.
TRD-200005606
Terrell I. Murphy
Executive Director
Texas Commission for the Blind
Earliest possible date of adoption: September 24, 2000
For further information, please call: (512) 377-0611
40 TAC §164.11
(Editor's note: The text of the following section proposed
for repeal will not be published. The section may be examined in the offices
of the Texas Juvenile Probation Commission or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the authority of Human Resources
Code, Title 5, Chapter 91, §91.011(h), which allows the agency to adopt
rules prescribing the policies and procedures followed by the Commission in
the administration of its programs.
The proposal affects no other statutes.
§164.11.Eligibility.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on August 11, 2000.
TRD-200005605
Terrell I. Murphy
Executive Director
Texas Commission for the Blind
Earliest possible date of adoption: September 24, 2000
For further information, please call: (512) 377-0611
40 TAC §164.25, §164.26
The amendments are proposed under the authority of Human Resources
Code, Title 5, Chapter 91, §91.011(h), which allows the agency to adopt
rules prescribing the policies and procedures followed by the Commission in
the administration of its programs.
The proposal affects no other statutes.
§164.25.Goods and Services.
(a)
Goods and services provided under this chapter must be
necessary to assist the consumer to achieve a greater level of independence.
(b)
Goods and services provided under this chapter shall be
subject to application of
§§164.40-164.46 of this title pertaining
to consumer participation in the cost of services
[
(c)
Goods and services shall be provided only when planned
in advance.
(d)
The agency shall use, to the maximum extent possible and
allowed, comparable services and benefits from other sources for all goods
and services to be provided under this chapter.
§164.26.Transportation.
[
Transportation may include
travel and related expenses for an attendant or aide if the services of that
person are necessary to enable the consumer to travel.]
(a)
[
(b)
[
(c)
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State, on August 11, 2000.
TRD-200005607
Terrell I. Murphy
Executive Director
Texas Commission for the Blind
Earliest possible date of adoption: September 24, 2000
For further information, please call: (512) 377-0611
40 TAC §§164.30-164.32
(Editor's note: The text of the following sections proposed
for repeal will not be published. The sections may be examined in the offices
of the Texas Juvenile Probation Commission or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal of this subchapter and all rules therein are proposed
under the authority of Human Resources Code, Title 5, Chapter 91, §91.011(h),
which allows the agency to adopt rules prescribing the policies and procedures
followed by the Commission in the administration of its programs.
The proposal affects no other statutes.
§164.30.Purpose.
§164.31.Application.
§164.32.Order of Selection.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on August 11, 2000.
TRD-200005608
Terrell I. Murphy
Executive Director
Texas Commission for the Blind
Earliest possible date of adoption: September 24, 2000
For further information, please call: (512) 377-0611
40 TAC §§164.41, 164.43, 164.45
The amendments are proposed under the authority of Human Resources
Code, Title 5, Chapter 91, §91.011(h), which allows the agency to adopt
rules prescribing the policies and procedures followed by the Commission in
the administration of its programs.
The proposal affects no other statutes.
§164.41.Scope.
All goods and services provided under this chapter are subject to this
subchapter except the following:
(1)
diagnostics and evaluation services (includes maintenance
and transportation);
(2)
counseling, guidance, and referral services provided by
commission staff;
(3)
independent living worker services;
(4)
orientation and mobility training;
(5)
low vision evaluations;
(6)
adaptive aids, appliances, and supplies under $50;
(7)
interpreter services;
(8)
Criss Cole Rehabilitation Center training (includes transportation
to and from the center); and
(9)
services paid for or reimbursed by a source other than
the commission.
(10)
training in management of
secondary disabilities or related health conditions.
§164.43.General Procedures.
(a)
The commission shall inform applicants of the rules on
consumer participation in the cost of services upon application.
(b)
All applicants and consumers, regardless of their economic
resources, may be asked if they can pay for any part of their rehabilitation
program.
(c)
Participation in the cost of services shall be determined
after eligibility requirements contained in §164.11 of this title (relating
to eligibility) and order of selection criteria contained in Subchapter D
of this title (relating to order of selection for independent living services)
have been applied and approved.
(d)
Participation in the cost of services shall be determined
by the economic resources of all persons meeting the definition of family
who have a legal obligation of support for the consumer.
(e)
Economic resources shall be evaluated at least annually
or at any time the commission is purchasing a service and/or the commission
has reason to believe the family's economic status has changed.
§164.45.Allowed Adjustments to Calculate Net Monthly Income.
It is not the intent of the commission to impose a financial hardship
upon a family; therefore, monthly income may be adjusted to net monthly income
by subtracting the following:
(1)
disability-related expenses paid by the family, including,
but not limited to,
medical payments as a result of disability and/or
illness of family member, [
(2)
prescribed family medications and diets
,
[
(3)
rent or home mortgage payments,
and
(4)
family obligations imposed
by court order.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on August 11, 2000.
TRD-200005609
Terrell I. Murphy
Executive Director
Texas Commission for the Blind
Earliest possible date of adoption: September 24, 2000
For further information, please call: (512) 377-0611
Subchapter A. GENERAL INFORMATION
40 TAC §169.3
The Texas Commission for the Blind proposes the amendment
of §169.3, pertaining to remedy of dissatisfaction in the Blind and Visually
Impaired Children's program. The amendment is needed to update the reference
to a section of the agency's rules that has subsequently been repealed and
adopted under a new section number.
Alvin Miller, Chief Financial Officer, has determined that for the first
five-year period the rule is in effect there will be no implications relating
to cost or revenues of the state or local governments as a result of enforcing
or administering the rule.
Mr. Miller has also determined that for each year of the first five years
the rules are in effect the anticipated public benefits will be current references
for rule clarity. There will be no economic cost to small businesses or individuals
as a result of the rule.
Questions about the content of this proposal may be directed to Jean Crecelius
at (512) 377-0611, and written comments on the proposal may be submitted to
Policy and Rules Coordinator, P. O. Box 12866, Austin, Texas 78711, within
30 days from the date of this publication.
The amendment is proposed under the authority of Human Resources
Code, Title 5, Chapter 91, Section 91.018, which authorizes the Commission
to promulgate rules establishing methods for directing complaints to the agency.
The proposal affects no other statutes.
§169.3.Remedy of Dissatisfaction.
The agency's appeal process in
Subchapter B of Chapter 161
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on August 11, 2000.
TRD-200005618
Terrell I. Murphy
Executive Director
Texas Commission for the Blind
Earliest possible date of adoption: September 24, 2000
For further information, please call: (512) 377-0611
Part 4.
TEXAS COMMISSION FOR THE BLIND
Chapter 161.
APPEALS AND HEARING PROCEDURES
§159.22
] of this title (relating to Reimbursement
of Expenses of Witnesses).
Chapter 163.
VOCATIONAL REHABILITATION PROGRAM
Examples of items not considered as equipment
are automobiles, building, land, operating capital, and operating cost.
]
The commission retains residual title to all tools, equipment, and unused
supplies issued to a consumer during the rehabilitation process.
]
Chapter 164.
INDEPENDENT LIVING PROGRAM
for eligible persons with visual impairments so that these persons
may reach a level of independence within their families and communities in
accordance with their capacities, interests, and abilities
].
provisions of the following:
]
(1)
]
(2)
]
(3)
]
, which is effective in all
political subdivisions of the state
].
In case of any conflict,
federal regulations shall prevail.
Applicant--A person, or a person's representative,
as appropriate, who has filled out and signed the commission's application
form or who has signed a written request for independent living services and
is available for an assessment to determine eligibility and priority for services.
]
(3)
]
(4)
] Comparable services and benefits--Services
and benefits that are provided or paid for, in whole or in part, by other
federal, state, or local public agencies, by health insurance, or by employee
benefits; available to the consumer; and commensurate in quality and nature
to the services that the consumer would otherwise receive from the commission.
(5)
] Consumer--A person who has
been determined eligible by the commission for independent living services.
/or
] financial responsibility.
severe
]
disability--An individual
with a visual impairment
whose ability
to function independently in the family or community or whose ability to obtain,
maintain, or advance in employment is substantially limited and for whom the
delivery of independent living services will improve the ability to function,
continue functioning, or move toward functioning independently in the family
or community or to continue in employment, respectively.
(9)
(10)
] Representative--A parent,
legal guardian, or other representative appointed by the court to represent
the individual or an advocate or other family member designated in writing
by the individual to represent the individual.
(11)
(12)
] Transportation--Travel and
related expenses that are necessary to enable a consumer to benefit from another
independent living service and travel
and related expenses for an attendant
or aide if the services of that attendant or aide are necessary to enable
an individual with a significant disability to benefit from that independent
living service.
(13)
] Visual impairment--A visual
acuity, with best correction, of 20/70 or less in the better eye, or a visual
field of 30 degrees or less in the better eye, or a combination of both.
Subchapter B. BASIC PROGRAM REQUIREMENTS
A person is considered an applicant for services on the day the
Commission receives either a signed application form or a written request
for independent living services, and the person is available for an assessment
to determine eligibility and priority for services.
]
(d)
Subchapter C. INDEPENDENT LIVING SERVICES
Subchapter D
of this title (relating to Order of Selection for Independent Living Services),
and Subchapter E of this title (relating to Consumer Participation in the
Cost of Services)
].
(a)
(b)
] Transportation that is available
to the consumer without cost to the commission shall be used first.
(c)
] Transportation provided by
the consumer shall be reimbursed at a rate no more than the rate for state
employees traveling on state business.
(d)
] To seek reimbursement for
transportation, the consumer must submit a statement to the commission noting,
at a minimum, the starting point, destination, the number of miles traveled,
and any other information as may be required by the commission to satisfy
state requirements.
Subchapter D. ORDER OF SELECTION FOR INDEPENDENT LIVING SERVICES
Subchapter E. CONSUMER PARTICIPATION IN THE COST OF SERVICES
and
]
.
]
Chapter 169.
BLIND AND VISUALLY IMPAIRED CHILDREN'S PROGRAM
§159.21
] of this title (relating to
Blind and Visually
Impaired Children's Program Appeals and Hearing Procedures
[
Appeals,
Process, Reviews and Hearings
]) shall be available to parents who wish
to contest a determination made concerning eligibility for services, the denial
and furnishing of services, and the termination of services.
Chapter 172.
ADVISORY COMMITTEES AND COUNCILS