Part 1.
TEXAS DEPARTMENT OF HUMAN SERVICES
Chapter 7.
REFUGEE CASH ASSISTANCE PROGRAM
The Texas Department of Human Services (DHS) proposes amendments to §§7.201,
7.204, 7.211, 7.212, 7.301, 7.305, 7.306, 7.307, 7.401, 7.403, 7.405, 7.502,
7.601, 7.602, and 7.603 concerning AFDC ineligibility, social security numbers,
marriage to a U.S. citizen, employment services, application and interview,
income and resources, grant amounts and budgeting, financial management, food
stamps, refugee medically needy program, family self-support services, reporting
changes, sanctions for noncompliance with employment services requirements,
fraud, recoupment, and appeal, and good cause; repeal of §7.304, §7.402,
and §7.501 concerning income from voluntary resettlement agencies, sponsors
and Medicaid/Early and Periodic Screening, Diagnosis and Treatment (EPSDT),
and monthly reporting; and new sections §7.304, §7.402, and §7.404,
concerning income from voluntary resettlement agencies, Medicaid/Texas Health
Steps (THSteps), and sponsors and refugee medical assistance (RMA) program,
in its Cash Assistance Program chapter. The purpose of the amendments, repeals,
and new sections is to update obsolete language and adhere to federal regulations
that were effective in April and June 2000. The updates allow easier access
to basic services for the refugee population.
Eric M. Bost, commissioner, has determined that for the first five-year
period the proposed sections will be in effect there will be no fiscal implications
for state or local governments as a result of enforcing or administering the
sections.
Mr. Bost also has determined that for each year of the first five years
the sections are in effect the public benefit anticipated as a result of adoption
of the proposed rules will be that households eligible for benefits from the
Refugee Resettlement Programs of Refugee Cash Assistance (RCA) and Refugee
Medical Assistance (RMA) are more likely to be eligible for assistance as
a result of more flexible rules; the rules concern counting income, deductions,
resources, and referrals for refugee children who are ineligible for Medicaid
to Children's Health Insurance Program (CHIP). There will be no effect on
small or micro businesses as a result of enforcing or administering the sections,
because these sections do not apply to businesses but to refugees who are
settling in a new country. There is no anticipated economic cost to persons
who are required to comply with the proposed sections.
Questions about the content of this proposal may be directed to Melissa
Saenz at (512) 438-4930 in DHS's Programs and Policy section. Written comments
on the proposal may be submitted to Supervisor, Rules and Handbooks Unit-90,
Texas Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030,
within 30 days of publication in the
Texas Register
.
Under §2007.003(b) of the Texas Government Code, the department has
determined that Chapter 2007 of the Government Code does not apply to these
rules. Accordingly, the department is not required to complete a takings impact
assessment regarding these rules.
Subchapter B. ELIGIBILITY CRITERIA
40 TAC §§7.201, 7.204, 7.211, 7.212
The amendments are proposed under the Human Resources Code,
Title 2, Chapter 31, which authorizes the department to administer financial
assistance programs.
The amendments implement the Human Resources Code, §§31.001-
31.0325.
TANF
[
A refugee must be ineligible for the
Temporary Assistance for
Needy Families Program (TANF)
[
§7.204.Social Security Numbers.
Requirements for Social Security Numbers are the same as outlined in
the
TANF
[
§7.211.Marriage to a United States Citizen.
If a refugee marries a U.S. citizen, only the refugee can be eligible
for RCA. Children resulting from the marriage are citizens and are not eligible
for RCA. DHS considers income of the refugee's spouse toward eligibility using
stepparent policies and procedures outlined in the
TANF
[
§7.212.Employment Services.
All nonexempt refugees who are at least 16 years old and not older
than 64 years must register for employment. DHS uses the same exemptions that
it uses in the
TANF
[
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 March 9, 2001.
TRD-200101435
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: April 22, 2001
For further information, please call: (512) 438-3108
40 TAC §§7.301, 7.304 - 7.307
The new section and amendments are proposed under the Human
Resources Code, Title 2, Chapter 31, which authorizes the department to administer
financial assistance programs.
The new section and amendments implement the Human Resources Code, §§31.001-31.0325.
§7.301.Application and Interview.
An applicant must complete and sign an application form to apply for
refugee cash assistance. The applicant must also have a
face-to-face
[
§7.304.Income from Voluntary Resettlement Agencies and Sponsors.
Texas Department of Human Services (DHS) exempts the income and resources
of the sponsor or Voluntary Resettlement Agency (VOLAG). DHS exempts VOLAG
grants from income. Refugee Cash Assistance (RCA) applicants are not eligible
if they are recipients in a match grant program.
§7.305.Income and Resources.
(a)
The
TANF
[
[
VOLAG grants are counted as
unearned income toward eligibility.]
[
The $30 and 1/3 earned income
disregard is not allowed.]
(b)
SSI payments, and overpayments caused by SSI payments,
are treated in the same manner as outlined in the
TANF
[
§7.306.Grant Amounts and Budgeting.
The same grant amounts and budgeting procedures in
TANF
[
§7.307.[
DHS determines whether household expenses can be met by income according
to the same requirements as outlined in the
TANF
[
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 March 9, 2001.
TRD-200101436
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: April 22, 2001
For further information, please call: (512) 438-3108
40 TAC §7.304
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Department of Human Services or in the Texas Register office, Room
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the Human Resources
Code, Title 2, Chapter 31, which authorizes the department to administer financial
assistance programs.
The repeal implements the Human Resources Code, §§31.001- 31.0325.
§7.304.Income from Voluntary Resettlement Agencies and Sponsors
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 March 9, 2001.
TRD-200101437
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: April 22, 2001
For further information, please call: (512) 438-3108
40 TAC §§7.401 - 7.405
The new sections and amendments are proposed under the Human
Resources Code, Title 2, Chapter 31, which authorizes the department to administer
financial assistance programs.
The new sections and amendments implement the Human Resources Code, §§31.001-31.0325.
§7.401.Food Stamps.
Refugees are eligible for food stamps the same as any other lawfully
admitted alien. If all members of the household residing as a family unit
receive either
TANF
[
§7.402.Medicaid/Texas Health Steps (THSteps).
TANF, Medicaid, and THSteps rules apply to RCA, except that transitional
Medicaid is denied if the eight-month limit is reached and eligibility for
transitional coverage is not dependent on the receipt of RCA for a specific
number of months out of the last six months.
§7.403.Refugee Medically Needy Program.
The Refugee Medically Needy Program is the same as outlined in the
TANF
[
(1)
the refugee must be ineligible for
TANF
[
(2)
after being certified for the Refugee Medically Needy
Program, the refugee continues to be eligible for Medical Programs (MP) without
spend down regardless of new or increased earnings.
[
§7.404.Refugee Medical Assistance (RMA) Program.
RMA is available to refugees who are ineligible for Medicaid, Medical
Programs, or to refugees who choose to only apply for RMA.
(1)
RMA eligibility is based on income and resources as of
the date of application.
(2)
RMA applicants whose income exceeds the Medically Needy
Income Limit (MNIL) on the date of application are eligible if deducting incurred
medical expenses puts the income under MNIL.
(3)
Income from a match grant program is exempt in determining
RMA eligibility.
§7.405.[
Refugees are eligible for all [
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 March 9, 2001.
TRD-200101438
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: April 22, 2001
For further information, please call: (512) 438-3108
40 TAC §7.402
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Department of Human Services or in the Texas Register office, Room
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the Human Resources
Code, Title 2, Chapter 31, which authorizes the department to administer financial
assistance programs.
The repeal implements the Human Resources Code, §§31.001- 31.0325.
§7.402.Medicaid/Early and Periodic Screening, Diagnosis, and Treatment (EPSDT).
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 March 9, 2001.
TRD-200101439
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: April 22, 2001
For further information, please call: (512) 438-3108
40 TAC §7.501
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Department of Human Services or in the Texas Register office, Room
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the Human Resources
Code, Title 2, Chapter 31, which authorizes the department to administer financial
assistance programs.
The repeal implements the Human Resources Code, §§31.001- 31.0325.
§7.501.Monthly Reporting.
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 March 9, 2001.
TRD-200101440
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: April 22, 2001
For further information, please call: (512) 438-3108
40 TAC §7.502
The amendment is proposed under the Human Resources Code,
Title 2, Chapter 31, which authorizes the department to administer financial
assistance programs.
The amendment implements the Human Resources Code, §§31.001-
31.0325.
§7.502.Reporting Changes.
RCA clients must report changes according to the same requirements
as outlined in
TANF
[
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 March 9, 2001.
TRD-200101441
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: April 22, 2001
For further information, please call: (512) 438-3108
40 TAC §§7.601 - 7.603
The amendments are proposed under the Human Resources Code,
Title 2, Chapter 31, which authorizes the department to administer financial
assistance programs.
The amendments implement the Human Resources Code, §§31.001-
31.0325.
§7.601.Sanctions for Noncompliance with Employment Services Requirements.
The same sanctions in
TANF
[
§7.602.Fraud, Recoupment, and Appeal.
TANF
[
§7.603.Good Cause.
If a refugee refuses to register for employment, participate in employment
services, or voluntarily quits a job, he may remain eligible only if the good
cause requirements in the
TANF
[
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 March 9, 2001.
TRD-200101442
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: April 22, 2001
For further information, please call: (512) 438-3108
The Texas Department of Human Services (DHS) proposes an amendment
to §19.101, concerning definitions, and §19.802, concerning comprehensive
care plans, in its Nursing Facility Requirements for Licensure and Medicaid
Certification chapter. The purpose of the amendments is to allow providers
the option of including a palliative plan of care in the comprehensive care
plan at the request of residents of nursing facilities with terminal conditions
or end stage diseases or other conditions. This part of the plan of care may
be developed when curative care is no longer warranted.
Eric M. Bost, commissioner, has determined that for the first five- year
period the sections are in effect there will be no fiscal implications for
state or local government as a result of enforcing or administering the sections.
Mr. Bost also has determined that for each year of the first five years
the sections are in effect the public benefit anticipated as a result of adoption
of the proposed rule will emphasize that all facilities must meet end-of-life
issues. The use of a palliative plan of care in the comprehensive care plan
may be an option when curative care is no longer warranted or desired by the
nursing facility resident, surrogate decision maker or the legal representative.
There will be no adverse economic effect on large, small or micro businesses,
because the amendment does not require additional staff or material goods
to enforce. Providers currently complete plans of care. There is no anticipated
economic cost to persons who are required to comply with the proposed sections.
Questions about the content of this proposal may be directed to Maxcine
Tomlinson at (512) 438-3169 in DHS's Long Term Care Policy Division. Written
comments on the proposal may be submitted to Supervisor, Rules and Handbooks
Unit-068, Texas Department of Human Services E-205, P.O. Box 149030, Austin,
Texas 78714-9030, within 30 days of publication in the
Texas Register
.
Subchapter B. DEFINITIONS
40 TAC §19.101
Under §2007.003(b) of the Texas Government Code, the
department has determined that Chapter 2007 of the Government Code does not
apply to these rules. Accordingly, the department is not required to complete
a takings impact assessment regarding these rules.
The amendment is proposed under the Health and Safety Code, Chapter 242,
which authorizes the department to license and regulate nursing facilities.
The amendment implements the Health and Safety Code, 242.001- 242.268.
§19.101.Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings, unless the context clearly indicates otherwise.
(1)-(93)
(No change.)
(94)
Palliative Plan of Care - appropriate
medical and nursing care for residents with advanced and progressive diseases
for whom the focus of care is controlling pain and symptoms while maintaining
optimum quality of life.
(95)
[
(96)
[
(97)
[
(98)
[
(99)
[
(100)
[
(101)
[
(A)
A graduate of a physician assistant training program that
is accredited by the Committee on Allied Health Education and Accreditation
of the Council on Medical Education of the American Medical Association, or
(B)
A person who has passed the examination given by the National
Commission on Certification of Physician Assistants. According to federal
requirements (42 CFR §491.2) a physician assistant is a person who meets
the applicable state requirements governing the qualifications for assistant
to primary care physicians, and who meets at least one of the following conditions:
(i)
is currently certified by the National Commission on Certification
of Physician Assistants to assist primary care physicians; or
(ii)
has satisfactorily completed a program for preparing physician's
assistants that:
(I)
was at least one academic year in length;
(II)
consisted of supervised clinical practice and at least
four months (in the aggregate) of classroom instruction directed toward preparing
students to deliver health care; and
(III)
was accredited by the American Medical Association's
Committee on Allied Health Education and Accreditation; or
(C)
A person who has satisfactorily completed a formal educational
program for preparing physician assistants who does not meet the requirements
of paragraph (d)(2), 42 CFR §491.2, and has been assisting primary care
physicians for a total of 12 months during the 18-month period immediately
preceding July 14, 1978.
(102)
[
(103)
[
(104)
[
(105)
[
(106)
[
(107)
[
(108)
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(109)
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(110)
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(111)
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(112)
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(113)
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(114)
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(115)
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(117)
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(118)
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(119)
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(120)
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(121)
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(122)
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(123)
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(124)
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(125)
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(126)
[
(A)
a bachelor's degree in social work, or
(B)
similar professional qualifications which include a minimum
educational requirement of a bachelor's degree and one year experience met
by employment providing social services in a health care setting.
(127)
[
(128)
[
(129)
[
(130)
[
(131)
[
(132)
[
(133)
[
(134)
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(135)
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(136)
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(137)
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(138)
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(139)
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(140)
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(141)
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(142)
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(143)
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(144)
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(145)
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(146)
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(147)
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(148)
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(149)
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(150)
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(151)
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(152)
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(153)
[
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 March 6, 2001.
TRD-200101348
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: April 22, 2001
For further information, please call: (512) 438-3108
40 TAC §19.802
The amendment is proposed under the Health and Safety Code,
Chapter 242, which authorizes the department to license and regulate nursing
facilities.
The amendment implements the Health and Safety Code, 242.001- 242.268.
§19.802.Comprehensive Care Plans.
(a)-(b)
(No change.)
(c)
A comprehensive care plan may include
a palliative plan of care. This plan may be developed only at the request
of the resident, surrogate decision maker or legal representative for residents
with terminal conditions, end stage diseases or other conditions for which
curative medical interventions are not appropriate. The plan of care must
have goals that focus on maintaining a safe, comfortable and supportive environment
in providing care to a resident at the end of life.
(d)
[
(1)
meet professional standards of quality; and
(2)
be provided by qualified persons in accordance with each
resident's written plan of care.
(e)
[
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 March 6, 2001.
TRD-200101350
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: April 22, 2001
For further information, please call: (512) 438-3108
Subchapter E. FLEET MANAGEMENT
40 TAC §68.501
The Texas Department of Human Services (DHS) proposes new §68.501
concerning restrictions on assignment of agency vehicles in new Chapter 68,
Business Services. The purpose of the section is to comply with Government
Code §2171.1045, which requires that agencies adopt rules relating to
the assignment and use of agency vehicles.
Eric M. Bost, commissioner, has determined that for the first five- year
period the section is in effect there will be no fiscal implications for state
or local government as a result of enforcing or administering the section.
Mr. Bost also has determined that for each year of the first five years
the section is in effect the public benefit anticipated as a result of adoption
of the proposed rule will be the establishment of an agency motor pool that
will increase vehicle use and improve the efficiency of vehicle fleet operations.
There will be no adverse economic effect on small or micro businesses, because
the rules only affect internal policies and procedures that are designed to
increase vehicle use. There is no anticipated economic cost to persons who
are required to comply with the proposed section.
Questions about the content of this proposal may be directed to Keith Romel
at (512) 438-5140 in DHS's Business Services division. Written comments on
the proposal may be submitted to Supervisor, Rules and Handbooks Unit-66,
Texas Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030,
within 30 days of publication in the
Texas Register
.
Under §2007.003(b) of the Texas Government Code, the department has
determined that Chapter 2007 of the Government Code does not apply to these
rules. Accordingly, the department is not required to complete a takings impact
assessment regarding these rules.
The new section is proposed under the Human Resources Code, Title
2, Chapter 22, which authorizes the department to administer public assistance
programs; and Texas Government Code §2171.1045, which directs state agencies
to adopt rules consistent with the management plan adopted under §2171.104,
relating to the assignment and use of the agency's vehicles.
The new section implements the Human Resources Code, §§22.001-
22.030 and the Government Code, §2171.1045.
§68.501.Restrictions on Assignment of Vehicles.
(a)
the agency motor pool may consist of agency vehicles permanently
assigned to state office or each regional field office.
(b)
DHS state office monitors vehicle usage and makes recommendations
on the consolidation of the agency's fleet as follows:
(1)
each agency vehicle must be assigned to the agency motor
pool and be available for checkout, and
(2)
a vehicle may be assigned to an individual employee on
a regular or everyday basis only if the agency makes a written finding that
the assignment is critical to the needs and mission of the agency.
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 March 7, 2001.
TRD-200101385
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: April 22, 2001
For further information, please call: (512) 438-3108
Chapter 167.
BUSINESS ENTERPRISES PROGRAM
The Texas Commission for the Blind proposes the repeal of §§167.1-167.3
pertaining to the Business Enterprises Program and simultaneously proposes
new §§167.1-167.16 pertaining to the operation of Business Enterprises
of Texas. The repeal is necessary to allow the agency to adopt revised rules
for the administration of the program. The new rules are the result of the
agency's review of TAC, Chapter 167, under the requirements of Texas Government
Code, §2001.039; and the General Appropriations Act, Article IX, §9-10.13,
76th Legislature, 1999, and the culmination of a two-year study of the program.
The recent change in the program's name from Business Enterprises Program
to Business Enterprises of Texas is reflected in the new chapter title.
The proposed new rules implement Texas Human Resources Code, Chapter 94,
pertaining to vending facilities operated by blind persons, and United States
Code, Title 20, Chapter 6A, pertaining to vending facilities for blind in
federal buildings. Section 167.2 defines terms used in these rules. Section
167.3 contains several general program policies, including the relationship
of Business Enterprises of Texas (BET) to the agency's Vocational Rehabilitation
Program and the fact that managing a BET facility constitutes full-time employment
under the Rehabilitation Act of 1973, as amended. The section also contains
rules on management subcontracting and the effect of a manager's outside employment
on eligibility to manage a BET facility. Section 167.4 contains rules on BET
administration, including the roles of the executive director and BET director.
The section contains the conditions under which consultants may be used in
facilities. Section 167.5 contains the agency's rules for entering the program
for training. Section 167.6 sets forth the conditions for licensing and the
nature of the license itself. Section 167.7 contains the agency's procedures
for making initial assignment and requirements for applying for career advancement
assignments. This section also contains rules for interviewing and selecting
from the managers applying for a career advancement assignment and the process
for investigating reports of improper contact during the selection process.
Section 167.8 contains the agency's rules for providing facilities with fixtures,
furnishings, and equipment and rules governing maintenance, repairs, and replacement.
The section also contains the requirements for obtaining advances for stocks
and supplies when a manager chooses to apply for another facility after the
manager's initial assignment. Section 167.9 contains the set-aside fee schedule
a manager is required to pay based on the manager's net proceeds. The section
also sets forth allowable adjustments to the monthly set-aside fee. Section
167.10 contains the basic duties and responsibilities of managers. Section
167.11 contains the basic responsibilities of the Commission. Section 167.12
creates and sets forth rules related to the BET Elected Committee of Managers.
Section 167.13 contains the conditions for nondisciplinary termination of
a BET license. Section 167.14 sets forth rules for disciplinary actions, including
types of disciplinary actions and notices of disciplinary procedures. Section
167.15 contains the procedures whereby managers who are dissatisfied with
a Commission action arising from the operation of BET may appeal the action.
Included are any timeframes in which the manager and commission must take
action. Section 167.16 contains the agency's policies on establishing and
closing facilities.
Alvin Miller, Chief Financial Officer, has determined that for the first
five years the rules are in effect there will be no fiscal implications for
state or local government as a result of the repeal or enforcing or administering
the new rules. There will be no economic cost to small or micro-businesses
as a result of enforcing these sections. The cost effect on individuals who
are required to comply with the new rules will depend on a licensed manager's
monthly facility net proceeds. Set-aside fees have been revised in these new
rules. Based on the income of all managers last year, 83% of the affected
licensed managers will pay less per month, 17% will pay more. There may be
some additional cost to some managers in the form of interest payments if
the manager finances the facility's initial inventory on a career advancement
assignment with a bank loan. Because business plans are required when a manager
applies for a career advancement facility, managers may incur an expense if
the manager chooses to have someone who charges for the service assist with
the plan.
Michael Hooks, BET Director, has determined that the public benefit anticipated
as a result of the repeal and new rules as proposed will be the adoption of
clearer rules for operating BET facilities in Texas pursuant to the Randolph-Sheppard
Act.
Comments on the proposal may be submitted to Jean Crecelius, Policy and
Rules Coordinator, Texas Commission for the Blind, 4800 North Lamar, Austin,
Texas 78756, or by e-mail to jean.crecelius@tcb.state.tx.us, or by fax (512)
377-2682. Comments must be received by the Commission no later than 30 days
from the date this proposal is published in the
Texas Register
.
40 TAC §§167.1-167.3
(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 for the Blind or in the Texas Register office, Room
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under Human Resources Code §94.012,
which authorizes the Commission to promulgate rules for the administration
of the program and §94.016, which authorizes the commission to administer
the program in accordance with the provisions of the Randolph-Sheppard Act
(20 U.S.C. Section 107 et seq.).
The proposal also affects Human Resources Code §91.052, Vocational
Rehabilitation Program for the Blind.
§167.1.Conformity to Federal Guidelines.
§167.2.Public Access to Internal Procedural Documents.
§167.3.Business Enterprises Manual.
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 March 8, 2001.
TRD-200101415
Terrell I. Murphy
Executive Director
Texas Commission for the Blind
Earliest possible date of adoption: April 22, 2001
For further information, please call: (512) 377-0611
40 TAC §§167.1 - 167.16
The new rules are proposed under Human Resources Code §94.012,
which authorizes the Commission to promulgate rules for the administration
of the program and §94.016, which authorizes the commission to administer
the program in accordance with the provisions of the Randolph-Sheppard Act
(20 U.S.C. Section 107 et seq.).
The proposal also affects Human Resources Code §91.052, Vocational
Rehabilitation Program for the Blind.
§167.1.Legal Authority.
(a)
Program name. The Commission shall carry out its responsibilities
for licensing blind persons to operate vending facilities on state, federal,
and other property through its state program entitled Business Enterprises
of Texas, formerly known as Business Enterprises Program. Any references still
in existence to Business Enterprises Program shall mean Business Enterprises
of Texas.
(b)
Federal authority. The Commission operates Business Enterprises
of Texas under the authority of the Randolph-Sheppard Act (20 USC. §107
et seq.) and implementing regulations (34 CFR §395.1 et seq.).
(c)
State authority. The Commission operates Business Enterprises
of Texas under the authority of Texas Human Resources Code, Title 5, Chapter
94, and is authorized in §94.016 to administer BET in accordance with
the provisions of the Randolph-Sheppard Act.
(d)
Statutory References. Unless expressly provided otherwise,
a reference to any portion of a statute, rule, or regulation applies to all
reenactments, revisions, or amendments of the statute, rule, or regulation.
§167.2.Definitions.
The following words and terms, when used in these rules, shall have
the following meanings, unless the context clearly indicates otherwise. Unless
expressly provided otherwise, words in the present or past tense include the
future tense, and the singular includes the plural and the plural includes
the singular. The masculine gender includes the feminine and neuter genders.
(1)
Act--Randolph-Sheppard Act (20 USC, Ch. 6A, §107 et
seq.).
(2)
Application--The "BET Facility Assignment Application"
form used by managers to apply for a facility.
(3)
BET--Business Enterprises of Texas.
(4)
BET Assignment--The document that sets forth the terms
and conditions for management of a BET facility by the individual named as
manager.
(5)
BET director--The administrator of Business Enterprises
of Texas; or, if there be no person in that capacity, the person designated
by the executive director to perform that function; or if there be none, the
executive director.
(6)
BET facility--Automatic vending machines, cafeterias, snack
bars, cart service, shelters, counters and such other appropriate auxiliary
equipment which may be operated by BET managers and which is necessary for
the sale of newspapers, periodicals, confections, tobacco products, foods,
beverages and other articles or services dispensed automatically or manually
and prepared on or off the premises in accordance with all applicable health
laws, and including the vending or exchange of tickets for any lottery authorized
by state law.
(7)
BET manual--"Business Enterprises of Texas Manual of Operations,"
which contains these rules adopted by the Commission's board and accordant
instructions and procedures by which BET facilities are to be managed.
(8)
Blind (person who is)--A person whose central visual acuity
does not exceed 20/200 in the better eye with correcting lenses or whose visual
acuity, if better than 20/200, is accompanied by a limit to the field of vision
in the better eye to such a degree that its widest diameter subtends an angle
of no greater than 20 degrees.
(9)
Board--The Commission's governing body appointed pursuant
to state law.
(10)
Business day--A day on which state agencies are officially
required to be open during their normal business hours.
(11)
Commission--Texas Commission for the Blind.
(12)
Commission staff - Employees of the Commission who have
been delegated the authority by the executive director or his designee to
take an action contained in these policies.
(13)
ECM--Elected Committee of Managers.
(14)
Executive Director--The Commission's chief executive officer.
(15)
Expendables--Items that require a low capital outlay and
have a short life expectancy, such as, by way of illustration and not limitation,
smallwares, thermometers, china, glass, silverware, sugar and napkin dispensers,
salt and pepper shakers, serving trays, mops, brooms, knives, spreaders, serving
spoons, and ladles.
(16)
Individual with a significant disability--An individual
who has a severe physical or mental impairment that seriously limits one or
more functional capacities (such as mobility or communication).
(17)
Initial assignment--The first BET facility to which a
manager is assigned after being licensed.
(18)
Level 1 facility--A BET facility which in the prior year
generated a net income after set-aside fees equal to or less than 170% of
the median net income after set-aside fees of all BET managers for the prior
year or, in the case of a new BET facility, is reasonably expected to generate
said income.
(19)
Level 2 facility--A BET facility which in the prior year
generated a net income after set-aside fees greater than 170% of the median
net income after set-aside fees of all BET managers for the prior year or,
in the case of a new BET facility, is reasonably expected to generate said
income.
(20)
Manager--A person licensed by the Commission to manage
a BET facility in Texas.
(21)
Net sales--All sales, excluding sales tax.
(22)
Other income--Money received by a manager from sources
other than direct sales, such as vending commissions or subsidies.
(23)
State property--Lands and buildings owned, leased, or
otherwise controlled by the State of Texas; and equipment and facilities purchased
and/or owned by the State of Texas.
(24)
Vending machine--For the purpose of assigning vending
machine income, a coin or currency operated machine that dispenses articles
or services, except those machines operated by the United States Postal Service
for the sale of postage stamps or other postal products and services. Machines
providing services of a recreational nature and telephones shall not be considered
to be vending machines.
§167.3.General Policies.
(a)
Objectives. The objectives of Business Enterprises of Texas
shall be:
(1)
to provide employment opportunities for qualified individuals;
and
(2)
to administer a continuing process of career development
for managers which encourages them to move into the private sector of business.
(b)
Relationship of BET to Vocational Rehabilitation Program.
The intent of Business Enterprises of Texas, as authorized in the Randolph-Sheppard
Act and the Texas Human Resources Code, is to stimulate and enlarge the economic
opportunities for the citizens of Texas who are blind or visually impaired
by establishing a vending facility program in which such persons who are in
need of employment are given preference in the operation of vending facilities
selected and installed by the Commission. The Commission is required to administer
BET in accordance with the Commission's vocational rehabilitation objectives.
Therefore, a consumer receiving services from the Vocational Rehabilitation
Program whose employment goal is to be a licensed manager shall have reached
an employment outcome as that term is used in the Rehabilitation Act of 1973
when the consumer is licensed by the Commission and is managing a BET facility.
The licensed manager shall not be considered an employee of the Commission,
state, or federal government.
(c)
Full-time employment. Managing a BET facility shall constitute
full-time employment. Full-time shall mean being actively engaged in the management
of a BET facility at least 40 hours a week unless a different period of time
is approved subsequent to the effective date of this section or a different
period of time has been approved by the Commission prior to the effective
date of this subsection. Management is the personal supervision of the day-to-day
operation of the assigned BET facility by the assigned manager.
(d)
Management subcontracting. The management of a BET facility
shall not be subcontracted except for temporary periods of time approved by
the Commission or in those circumstances in which the Commission deems that
subcontracting the operation of some parts of the facility are in the best
interest of BET. In all events, subcontracting shall require the prior written
consent of the Commission. This subsection shall not affect subcontracts in
existence on the effective date of this subsection.
(e)
Effect of outside employment. Managers earning adjusted
gross incomes (as defined in the Internal Revenue Code and as reported to
the IRS for the most recent year) from outside employment equal to or greater
than their enterprise income or 170% of the prior year's median income of
all BET managers, whichever is greater, are considered no longer in need of
employment through BET and shall not be eligible to manage a BET facility.
Personal income tax returns for this purpose shall be provided to the Commission
upon request.
(f)
Availability of funds. The administration of BET and the
implementation of these policies are contingent upon the availability of funds
for the purposes stated herein.
(g)
BET manual. All BET policies adopted by the board shall
be included in the BET manual. The BET director shall ensure that each manager
is provided with a copy of the manual and any revisions thereto. The manager
shall be responsible for reading the manual and acknowledging in writing that
he or she has read and understands its contents. The BET director shall insure
that the BET manual contains procedures whereby managers may obtain assistance
in understanding BET policies and procedures.
(h)
Accessibility of BET materials. All information produced
by and provided to managers by the Commission shall be in an accessible format.
When possible, materials will be sent in the format requested by the manager.
(i)
Nondiscrimination.
(1)
VR and BET participants. The Commission shall not discriminate
against any blind person who is participating in or who may wish to participate
in Business Enterprises of Texas on the basis of sex, age, religion, color,
creed, national origin, political affiliation, or physical or mental impairment,
insofar as such impairment does not preclude satisfactory performance.
(2)
BET facilities. Managers shall operate BET facilities without
discriminating against any present or prospective supplier, customer, employee,
or other individual who might come into contact with the facility on the basis
of sex, age, religion, color, creed, national origin, political affiliation
or physical or mental impairment.
(j)
Emergencies. The BET director is authorized to expend funds
on an emergency basis for the purpose of protecting the state's investment
in a BET facility not to exceed $15,000 in a fiscal year or $2,500 per facility
incident.
§167.4.BET Administration.
(a)
Executive director. The executive director (subject to
Subchapter A, Chapter 531, Government Code, pertaining to the authority of
the Commissioner of the Health and Human Services Commission over certain
agency functions) is authorized to:
(1)
establish personnel policies for Commission personnel employed
in BET;
(2)
establish BET plans, which at a minimum shall provide for
all services, assistance, training, supervision, and planning necessary for
the implementation and administration of BET; and
(3)
delegate authority to implement these rules to the BET
director.
(b)
BET director. In addition to the responsibilities delegated
to the BET director by the executive director, the BET director shall be responsible
for:
(1)
implementing BET personnel policies and development plans;
and
(2)
disseminating the information developed by the executive
director related to BET plans and policies to all managers.
(c)
Consultants.
(1)
If the Commission determines a consultant is necessary
to assist a manager or protect the interests of the agency, the Commission
shall contract with a consultant and may pay for the consultant out of the
facility revenues.
(2)
If the Commission determines a consultant is necessary
to assist a manager who is currently in a facility, the BET director shall
consult with the manager prior to contracting with a consultant. The final
authority, however, for contracting with a consultant shall rest with the
Commission.
(3)
All consultant contracts entered into by the Commission
for the provision of support and mentoring services to the manager shall not
exceed three years in duration, provided, however, that the contract may be
extended for additional periods not to exceed one year each. No contract shall
be extended until the manager has been consulted. The final discretion to
extend the contract shall rest with the Commission.
(4)
If the Commission determines it necessary to contract with
a consultant to protect the interests of the Commission, the Commission shall
enter into a separate agreement for that purpose with such terms and conditions
as the Commission may deem appropriate.
§167.5.Training of Potential Managers.
(a)
Prerequisites for training. To be eligible for BET training,
consumers desiring a career with BET as a vocational rehabilitation program
employment outcome must meet the following criteria:
(1)
The person must be at least 18 years of age.
(2)
The person must be a United States citizen residing in
Texas (a birth certificate or other applicable documentation must be submitted
with the application).
(3)
The person must be blind.
(4)
The person must have demonstrated proficiency in math,
writing, and reading comprehension.
(5)
The person must have adequate general health and stamina
required to perform the basic functions of a manager.
(6)
The person must have adequate mobility skills to safely
operate a BET facility.
(7)
The person must not have a history of substance abuse for
the previous 12 months.
(b)
Application process. Each eligible consumer interested
in applying for BET training may submit an application and shall receive an
interview and be informed of the results of the application.
§167.6.BET Licenses.
(a)
Natural persons. Licenses to manage a BET facility shall
be issued only to natural persons.
(b)
Prerequisites. No person may be licensed until such person
has satisfactorily completed all required BET training and otherwise continues
to satisfy the criteria for entry into BET.
(c)
Issuance. A license issued by the Commission shall bear
the name of the manager, date of issue, and contain such other information
as may be deemed to be appropriate from time to time by the executive director.
The license shall be signed by the executive director on behalf of the Commission
and State of Texas.
(d)
Display. The license or a copy of the license shall be
displayed prominently in the enterprise to which the manager is assigned.
(e)
Property right. A license shall not create any property
right in the manager to whom it is issued and shall be deemed only to inform
the public and other interested parties that the manager has successfully
completed BET training and is qualified and authorized to operate a BET facility.
(f)
Transferability. A license is not transferable.
(g)
Term. A license issued by the Commission shall be valid
for an indefinite period, subject, however, to termination, revocation, or
suspension pursuant to conditions specified in these policies pertaining to
nondisciplinary termination of license and termination for disciplinary reasons.
§167.7.Initial and Career Advancement Assignment Procedures.
(a)
Purpose. This section defines the process for the initial
and career advancement assignments of managers. It is the goal of the process
to provide a fair, unbiased, and impartial process for selection, transfer,
and promotion.
(b)
Initial assignment. Upon successful completion of BET training,
the initial assignment for a newly-licensed manager shall be made by the BET
director. The initial assignment shall be for a minimum of 12 months. The
BET director shall make the assignment based on the following:
(1)
availability of a Level 1 facility;
(2)
recommendations from the BET training specialist and the
ECM chairperson;
(3)
manager's training records;
(4)
manager's geographical concerns; and
(5)
any other circumstances on a case-by-case basis.
(c)
Career advancement assignments.
(1)
Availability. All career advancement opportunities are
dependent upon the availability of BET facilities.
(2)
Notice. As BET facilities become available, written notice
of such availability shall be given to all managers.
(3)
On-site visits. An advertised facility shall be available
for onsite visits upon reasonable notice by applicants.
(4)
Eligibility. To apply for an available facility, a manager
must meet the following requirements:
(A)
The manager must have successfully managed a BET facility
for a minimum of one year.
(B)
The manager must have been current on all accounts payable
for the preceding 12 months prior to the date of the facility announcement.
(C)
The manager must not be on probation under the section
of these rules relating to disciplinary actions.
(D)
The manager must meet eligibility requirements of the facility's
host organization.
(E)
The manager must not have submitted two or more insufficient
fund checks to the Commission within the 12 months prior to the date of the
facility announcement.
(F)
The manager must not have submitted two or more late reports
within the 12 months prior to the date of the facility announcement.
(G)
If unassigned, the manager must have fulfilled all resignation
requirements in the manager's last facility or be displaced and eligible to
apply for a facility.
(H)
The manager must have an inventory of merchandise and expendables
in the manager's current facility as the Commission has determined sufficient
for its satisfactory operation.
(I)
The manager must satisfy the Commission that he can acquire
the merchandise and expendables required for the available facility.
(J)
A manager who has been placed on probation is not eligible
for promotion and transfer for 30 days following release from probation.
(K)
A manager who has been placed on probation twice within
a twelve-month period is not eligible for promotion or transfer for six months
following release from probation.
(L)
A manager who has been placed on probation three times
within a two-year period is not eligible for promotion or transfer for one
year following release from probation.
(5)
BET application deadline. A manager may apply for an available
facility by submitting an application not later than the 12th business day
(exclusive of date of mailing) after the date the facility notice was mailed.
The submission date shall be:
(A)
the date the application is delivered to the Commission;
or
(B)
3 days after deposit of the application in the United States
mail, whichever is earlier; or
(C)
the date the application is delivered to an overnight courier.
(6)
BET application contents. A copy of the current form of
the application shall be included in the BET manual. The substance of the
application form shall not be modified except by action of the Commission's
board. Modifications shall be provided to all managers prior to their effective
date.
(7)
Preliminary review of applications. Commission staff and
the ECM representative in each geographic area in which the applying managers
are currently located shall review all applications from their areas and shall
verify the applying manager's eligibility and the accuracy of the application.
In the event an ECM representative is an applicant for an available BET facility,
the ECM chairperson shall appoint another ECM member for the review. The reviewing
Commission staff and ECM representative shall provide assistance upon request
to enable the applicant to correctly complete the application. Completed applications
shall then be forwarded to the BET director who shall provide copies to the
ECM and Commission staff in the area in which the available facility is located.
(8)
Level 1 assignments. Assignments to Level 1 facilities
shall be made by the BET director after reviewing the recommendations and
assessments of all applicants conducted by the ECM representative and Commission
staff for the regions in which the available facilities are located.
(9)
Level 2 assignments. For Level 2 assignments, the following
additional procedures shall apply:
(A)
Business plan. An applicant must submit a business plan
to the BET director no later than the 20th business day after the postmark
date on the notice of facility availability. Upon request by an applicant,
the Commission staff in the area in which the available facility is located
shall provide a standard packet of information to the applicant containing
information necessary to prepare the business plan. The Commission staff shall
deliver the packet to the applicant no later than the 3rd business day after
receiving a request.
(B)
Establishment of pool of impartial and qualified individuals.
The Commission shall establish and maintain a pool of qualified individuals.
The pool members shall be individuals who:
(i)
have no personal, professional, or financial interest that
would be in conflict with the objectivity of the individual;
(ii)
neither have nor have had any association with the Commission
or Business Enterprises of Texas prior to being considered as a pool member;
and
(iii)
have at least 5 years experience in business at a managerial
or executive level, including experience in budget preparation and administration,
personnel supervision or management; and administration of business plans
or equivalents to business plans in the sector of business in which the person
has experience.
(C)
Evaluation of business plans. All business plans shall
be reviewed and evaluated by an individual chosen at random from the pool
of impartial and qualified individuals. Business plans shall be evaluated
and scored based on a scoring system of 100 points. The evaluations and scores
shall then be forwarded to the BET director for consideration by the selection
panel in the selection process.
(D)
Selection panel. A selection panel consisting of one representative
from the ECM, one Commission staff member, and one individual from the pool
of impartial and qualified individuals shall be chosen by means of a computer
program that selects randomly from a database. The selection of each panel
member shall be from among all persons within their respective categories,
except that the impartial member may not be the individual who evaluated the
business plans. If the member of a category of panel members who is selected
is unable or refuses to serve, the BET director shall use the same method
of random selection until three members are chosen.
(E)
Presiding officer. The impartial panel member shall serve
as the presiding officer of the selection panel.
(F)
Interview notices. Applicants shall be notified by first
class U. S. Mail of the date, place and time of the selection panel interview
no fewer than 10 business days prior to the convening of the selection panel.
(G)
Selection panel materials. Completed applications and business
plans shall be provided to the selection panel members no fewer than 5 business
days prior to the date the selection panel is to convene.
(H)
Duties of selection panel. The selection panel shall review
the documents provided and interview the applicants. The selection panel shall
then rank the top three applicants. The selections shall be transmitted to
the BET director, who shall in turn notify the highest ranked applicant of
the decision of the selection panel. The available facility shall be offered
to the applicants in order of ranking.
(I)
Reports of improper contact. Members of the selection panel
must report improper contacts to the BET director or the executive director.
Improper contact is defined as any communication with a member of the selection
panel for the purpose of influencing or manipulating, directly or indirectly,
the selection of an applicant for the facility being considered for assignment.
Nothing contained in this section, however, shall be deemed to prohibit any
manager from endorsing or supporting any candidate for selection by furnishing
a letter or other document to that effect to be included with the applying
manager's application. At the conclusion of the selection panel's responsibilities,
each panel member shall be required to sign a statement certifying whether
the member had, or had knowledge of, an improper contact during the selection
proceedings.
(J)
Process for investigating reports of improper contact.
When improper contact is reported, each applicant for the facility under consideration
shall be informed as to the improper contact. The information provided to
the applicants shall describe the nature of the improper contact but shall
not divulge the identities of any persons allegedly participating in such
improper contact. Each applicant may make objection to continuation by the
existing panel and request that a new panel be formed to select the manager
for the available facility. The executive director, upon the request of any
applicant for the facility or upon the request of the BET director, shall
determine if the improper contact is such as to require that the panel be
disbanded and a new panel formed. In making that decision, the executive director
shall consider all relevant factors, including the objections, if any, of
the applicants, to determine if the improper contact is likely to influence
the decision of the selection panel. If the executive director determines
that the improper contact is likely to influence the selection process, the
executive director shall direct that the panel be disbanded and that a new
panel be formed to consider the selection for the facility being considered.
The executive director shall inform all applicants of his decision to continue
the selection process with the existing panel or to form a new panel and shall
state the basis of the decision. The actions prescribed as a consequence of
improper contact set forth in policies pertaining to disciplinary actions
shall apply whether or not any improper contact results in the panel being
disbanded.
(K)
Exceptions to assignment and selection procedures. Unusual
circumstances may require exceptions to assignment and selection procedures.
Exceptions to these procedures shall be made only if the circumstance is not
covered by assignment procedures and failure to react to the circumstance
would be detrimental to BET or a manager. Notwithstanding anything in this
section, no exceptional procedure shall result in the removal of a manager
from a facility except for reasons contained in policies pertaining to disciplinary
actions. Assignment and selection decisions that are exceptions to these procedures
shall be made by the BET director after discussing relevant information with
the ECM chairperson and receiving the chairperson's recommendation. Should
a decision contrary to the ECM chairperson's recommendation be made, the BET
director shall provide a written explanation of the decision to the ECM chairperson.
§167.8.Fixtures, Furnishings, and Equipment; Initial Inventory and Expendables.
(a)
Survey. When a BET facility becomes available for assignment
to a manager, Commission staff shall conduct a survey of the site to determine
the fixtures, furnishings, and equipment required to allow the facility to
operate in accordance with projections by Commission staff as to the potential
for the facility. When such facility is an existing one, the survey shall
consider the need for replacement or repair of fixtures, furnishings, and
equipment.
(b)
Facility plan. Commission staff shall prepare a detailed
schedule of the requirements for fixtures, furnishings, and equipment for
the facility, including specifications for each item required and a site plan
of the facility depicting the placement of the fixtures, furnishings, and
equipment within the facility.
(c)
Acquisition, placement, and installation. When satisfied
as to the fixtures, furnishings, and equipment required for the facility,
Commission staff shall cause the necessary fixtures, furnishings, and equipment
to be purchased or otherwise acquired and placed and/or installed in or upon
the facility in accordance with the approved plans.
(d)
Ownership.
(1)
All state fixtures, furnishings, and equipment within the
facility shall at all times remain the property of the State of Texas. Their
use by the facility manager shall be as a licensee only.
(2)
The Commission shall have the sole authority to direct,
control, transfer, and dispose of such fixtures, furnishings, and equipment
as it determines to be appropriate and necessary.
(e)
Modifications. No modifications or alterations shall be
made to state-owned fixtures, furnishings, and equipment by any person, firm,
or entity without the express prior written approval of the Commission, which
shall be granted or not granted solely at the discretion of the Commission.
(f)
Upkeep and maintenance.
(1)
The manager assigned to a facility shall be provided with
manuals, instructions, and guides in an accessible format to state-owned fixtures,
furnishings, and equipment within the facility.
(2)
It shall be the responsibility of the manager to keep Commission
fixtures, furnishings, and equipment in a clean and sanitary condition and
to perform maintenance required or recommended by the manufacturers or vendors
of the fixtures, furnishings, and equipment.
(3)
The manager shall keep and maintain accurate records of
all maintenance performed on Commission fixtures, furnishings, and equipment.
Any failure or refusal of the manager to perform the maintenance referred
to herein shall result in the manager being required to reimburse the Commission
for any cost or expense resulting from such failure or refusal.
(g)
Repairs and replacements.
(1)
The Commission shall be responsible for all necessary repairs
of any of the state-owned fixtures, furnishings, and equipment located within
the facility except for repairs necessitated by the negligence, abuse, or
misuse of the fixtures, furnishings, or equipment by the manager or the manager's
employees. The cost of repairs necessitated by negligence, abuse, or misuse
by the manager or the manager's employees shall be the sole responsibility
of the manager. Failure to make such repairs shall result in disciplinary
action pursuant to these rules.
(2)
The BET director shall establish and implement procedures
for effecting the timely necessary repairs and for the payment for such services.
There shall be included in these procedures specific procedures for initiating
repairs by the manager and a list of approved vendors for repairs, which shall
be provided to each manager as published and as revised from time to time.
(3)
Under no circumstances is a manager authorized to have
the cost of repairs charged to the Commission or have repairs made by anyone
other than approved vendors unless specific authority to do so has been given
to the manager in writing by Commission staff. Each vendor included in the
approved list of vendors for repairs shall be informed by Commission staff
of this prohibition and of the procedures for authorized repairs and for payment
for services.
(4)
Commission staff on their own initiative or upon request
by a manager shall determine the need for replacement of any fixtures, furnishings,
or equipment. If such need is determined, Commission staff shall report the
need to the BET director. If authorized by the BET director, replacement fixtures,
furnishings, or equipment shall be acquired from available BET funds.
(5)
Fixtures, furnishings, and equipment shall not include
expendables. Each manager of a facility shall be responsible for replacing
all such items with items of comparable quality as those being replaced and
originally furnished by the Commission.
(h)
Initial inventory of merchandise and expendables for newly-licensed
managers. The Commission shall furnish without charge the initial inventory
of merchandise and expendables for the first facility of a newly-licensed
manager. The initial inventory of merchandise and expendables shall be sufficient,
as projected by the Commission, to provide the manager with merchandise and
expendables for 30 days.
(i)
Subsequent inventory of merchandise and expendables.
(1)
The manager shall maintain an inventory of merchandise
and expendables in the same quantity as the initial merchandise and expendables
transferred to the manager upon assignment to the facility. If the Commission
determines that changed circumstances require a different amount of merchandise
and expendables, the Commission shall communicate in writing to the manager
the new amount of merchandise and expendables. If a new amount of merchandise
and expendables is necessary to provide for the satisfactory operation of
the facility, that new amount of inventory must be maintained by the manager.
(2)
Managers assigned to any facility other than their initial
assignment in Texas shall acquire the merchandise and expendables as determined
by the Commission to be sufficient to satisfactorily operate the facility.
(j)
Purchases on credit. Managers must notify the Commission
in advance of any purchase of merchandise and expendables on credit.
(k)
Obtaining an advance from the Commission for initial inventory.
Managers may apply to the Commission for an advance to purchase an initial
inventory of merchandise and expendables. The granting of an advance is discretionary
and may be granted only under the following conditions:
(1)
The manager must satisfy the Commission in writing as to
why the advance is needed and why the funds are not available from other sources.
(2)
Before an advance is granted by the Commission pursuant
to this section, the manager must submit evidence satisfactory to the Commission
that the financing has been sought from at least two commercial financial
institutions, such as, by way of example, the Small Business Administration,
banks, savings and loans, credit unions, or like institutions.
(3)
The manager shall satisfy the Commission as to the manager's
ability to repay the advance within 12 months.
(4)
Managers with outstanding balances on advances are not
eligible for transfer to another assignment.
(l)
Transfer of fixtures, furnishings, equipment, and inventory
of merchandise and expendable Items. When a manager is assigned to an existing
BET facility, the responsibility for the fixtures, furnishings, and equipment
of that facility, as well as its inventory of merchandise and expendable items,
shall be transferred to the incoming manager. The BET director shall develop
and implement procedures for effecting such transfers to assure that both
the incoming and outgoing managers have full knowledge of the nature and condition
of the items being transferred.
§167.9.Set-Aside Fees.
(a)
Purpose. It is the policy of the Texas Commission for the
Blind to require from managers the payment of a set-aside fee based on the
monthly net proceeds of their BET facilities. The purpose of requiring such
payment is:
(1)
to promote to the greatest possible extent the concept
of a manager being an independent business person;
(2)
to cause BET to be to the greatest extent possible, with
due regard to other considerations, self-supporting;
(3)
to encourage and stimulate growth in BET; and
(4)
to provide incentives for the increased employment opportunities
for blind Texans.
(b)
Use of funds. To the extent permitted or required by applicable
laws, rules, and regulations, the funds collected as set-aside fees shall
be used by the Commission for the following purposes:
(1)
maintenance and replacement of equipment for use in BET;
(2)
purchase of new equipment for use in BET;
(3)
management services;
(4)
assuring a fair minimum return to managers; and
(5)
the establishment and maintenance of retirement or pension
funds, health insurance contributions, and provision for paid sick leave and
vacation time.
(c)
Method of computing net proceeds.
(1)
Net proceeds is the amount remaining from the sale of merchandise
of a BET facility, all vending machine income, and other income accruing to
the manager from the facility after deducting the reasonable and necessary
cost of such sale, but excluding set-aside charges required to be paid by
the manager. Net sales are all sales, excluding sales tax.
(2)
Costs of sales that may be deducted from net sales to calculate
net proceeds in a reporting period shall be limited to:
(A)
cost of merchandise sold;
(B)
wages paid to employees;
(C)
payroll taxes; and
(D)
the following reasonable miscellaneous operating expenses
that are directly related to the operation of the BET facility:
(i)
discretionary expenses, not to exceed 1.5% of the monthly
net sales, or $150, whichever is greater;
(ii)
rent and utilities authorized in the permit or contract;
(iii)
business taxes, licenses, and permits;
(iv)
telecommunication services;
(v)
liability, property damage, and fire insurance;
(vi)
Worker's Compensation insurance;
(vii)
employee group hospitalization/health insurance;
(viii)
employee retirement contributions (the plans must be
IRS-approved and not for the manager);
(ix)
janitorial services, supplies, and equipment;
(x)
bookkeeping and accounting services;
(xi)
trash removal and disposal services;
(xii)
service contracts on file with the Commission;
(xiii)
legal fees directly related to the operation of the
facility (legal fees directly or indirectly related to actions against governmental
entities are not deductible);
(xiv)
medical expenses directly related to accidents that occur
to employees at the facility, not to exceed $500;
(xv)
purchase of personally owned or leased equipment that
has been approved by the Commission for placement in the facility;
(xvi)
repairs and maintenance to personally owned or leased
equipment that has been approved by the Commission to be placed within the
facility;
(xvii)
consumable office supplies; and
(xviii)
exterminator/pest control services.
(3)
All reports by managers shall be accompanied by such supporting
documents as may be required by the Commission.
(d)
Method of computing monthly set-aside fee. The amount of
set-aside fee owed shall be according to the following schedule:
(1)
On net proceeds of $1 to $999.99, the amount shall be 2%
of the manager's net proceeds.
(2)
On net proceeds of $1,000 to $1,499.99, the amount shall
be 3% of the manager's net proceeds.
(3)
On net proceeds of $1,500 to $1,999.99, the amount shall
be 4% of the manager's net proceeds.
(4)
On net proceeds of $2,000 to $5,999.99, the amount shall
be $80 plus 18% of the manager's net proceeds over $2,000.
(5)
On net proceeds of $6,000 or more, the amount shall be
$800 plus 24% of the manager's net proceeds over $6,000.
(e)
Payment of set-aside fee. The set-aside fee shall be submitted
with the manager's monthly statement of facility operations. The BET director
shall develop and implement procedures for the preparation and submittal of
monthly statements.
(f)
Adjustments to monthly set-aside fee.
(1)
When a "single point of contact" is required under the
provisions of §167.16 of this title, pertaining to establishing and closing
facilities, the monthly set-aside payment for the contact manager shall be
reduced by 3% for each manager represented.
(2)
To encourage managers to hire individuals with significant
disabilities, managers shall deduct from their set-aside payment up to 50%
of the wages or salary paid to a blind or otherwise significantly disabled
employee during any month up to an amount not to exceed 5% of the set-aside
payment amount for that month. A manager may make this deduction for any number
of employees who are individuals who are blind or otherwise significantly
disabled so long as that deduction from the set-aside payment amount does
not exceed 25% of the total set-aside payment due, or $1,250.00, whichever
is less. The manager shall provide such documentation to the Commission as
required by the Commission to verify such employment and the right to the
reduction in set-aside fees. For the purposes of this paragraph, the term
"blind or otherwise significantly disabled employee" does not include:
(A)
the manager,
(B)
a blind or otherwise significantly disabled person within
the first degree of consanguinity or affinity to the manager, or
(C)
a blind or otherwise significantly disabled person claimed
as a dependent, either in whole or in part, on the manager's United States
income tax return.
(3)
Any adjustments provided for in paragraphs (1) and (2)
of this subsection shall not apply for any month in which the set-aside fee
is not paid in a timely manner.
(4)
To encourage managers to promptly file their monthly statement
of facility operations and pay their monthly set-aside fee, managers shall
have their monthly set-aside fee increased by 5% if either their monthly statement
or the monthly set-aside fee is not timely received by the Commission in accordance
with BET procedures for their preparation and submittal. None of the terms
of this rule shall ever be construed to create a contract to pay, as consideration
for the use, forbearance, or detention of money, interest at a rate in excess
of the maximum rate permitted by applicable laws. This adjustment to the set-aside
fee is not imposed as interest, but if for any reason whatever this adjustment
is considered to be interest, the Commission shall refund to the manager any
and all amounts as shall be necessary to cause the "interest" paid to produce
a rate equal to the maximum rate permitted by applicable laws.
§167.10.Duties and Responsibilities of Managers.
(a)
Managers must comply with applicable law, these rules,
written agreements with hosts, the BET Assignment, the requirements of the
BET manual, and any proper and authorized instruction by Commission staff.
(b)
Managers must comply with procedures prescribed by the
Comptroller of Public Accounts for the payment of sales taxes and provide
evidence to the Commission of timely sales tax remittances.
(c)
Managers must not jeopardize the Commission's right, title,
and interest in the BET facility, its equipment, or the lease or agreement
with the property managers.
(d)
Managers must maintain a professional appearance and act
in a professional manner while managing a BET facility.
(e)
Managers must open a commercial business account in which
they maintain sufficient funds to operate the BET facility.
(f)
Managers must purchase and maintain in force liability
and product liability insurance and shall name the licensee and the State
of Texas as named insured. The host shall be added as an insured when required.
(g)
Managers must hire sufficient employees to insure the efficient
operation of the BET facility and to provide adequate service to customers.
(h)
Managers must be actively engaged at least 40 hours a week
in the management of the BET facility to which they are assigned unless a
different period of time is approved by the Commission subsequent to the effective
date of this section or a different period of time was approved by the Commission
prior to the effective date of this section.
(i)
Managers must take appropriate and timely actions to correct
deficiencies noted on BET facility audits or reviews.
(j)
Managers must provide satisfactory service to the BET facility
host and customers.
(k)
Except in the case of an emergency, managers must provide
prior notice to the Commission of leave due to illness, vacation, or for personal
reasons.
§167.11.Responsibilities of the Commission.
(a)
Management services. The Commission shall provide each
manager with regular and systematic management services, which shall, at a
minimum, include:
(1)
explanations of the Commission's rules, procedures, policies,
and standards;
(2)
recommendations on ways in which the facility may be made
more profitable for the manager;
(3)
techniques to develop positive relationships with customers,
assistants and management of the host organization;
(4)
possible solutions to problems recognized by the manager
or brought to the manager's attention by Commission staff or the facility
host;
(5)
continuing education and training courses and opportunities
for managers designed to enhance skills, productivity and profitability; and
(6)
information about laws, rules, and regulations affecting
the operation of a BET facility.
(b)
Training. The Commission shall conduct a special training
seminar each year for all managers to inform them of new BET developments
and to provide instruction on new, relevant topics to enhance upward mobility.
(c)
Facility operating conditions. The Commission shall establish
the conditions for operation of a BET facility. The operating conditions shall
include, among other things, pricing requirements, hours of operation, and
menu items or product lines. The Commission may revise the operating conditions
from time to time as market conditions warrant. The final authority and ultimate
responsibility for determining the prices to be charged for products sold
through BET facilities shall rest with the Commission
(d)
BET financial data. Upon request, the Commission shall
provide managers with access to BET financial data. Also upon request, the
Commission staff shall provide assistance to the manager in interpreting the
data.
(e)
Inventory payment. When a manager leaves the manager's
initial assignment, the Commission shall pay the manager or the manager's
heirs the value of the usable stock and supplies above the amount provided
to the manager upon initial assignment.
§167.12.BET Elected Committee of Managers.
(a)
Authority. The Elected Committee of Managers (ECM) is created
and shall operate pursuant to Section 107b-1 of the Act.
(b)
Relationship to Commission. The ECM shall be presumed as
the sole representative of all managers to the Commission in matters contained
in the Act and implementing regulations requiring the active participation
of the ECM. Active participation means an ongoing process of good faith negotiations
between the Elected Committee of Managers and the Commission in the development
of BET policies and procedures prior to implementation. The Commission shall
have the ultimate responsibility for the administration and operation of all
aspects of BET and has final authority in decisions affecting BET.
(c)
Relationship to managers.
(1)
It shall be the sole responsibility of the managers who
elect the members of the ECM to insure that the persons elected represent
all managers.
(2)
The ECM shall, in addition to all other matters set forth
in these rules or by law or regulation affecting the administration of BET,
act as advocates for the managers and trainees and shall strive to improve,
expand, and make profitable and successful BET to the greatest possible extent
for the mutual benefit of the Commission and of the consumers who participate
in the program.
(d)
BET policies, rules, and procedures. In all matters related
to policies and rules, the Commission's board has the ultimate responsibility
and the ultimate authority for their establishment and adoption. The ECM shall
actively participate in the consideration of significant BET decisions and
in deliberations of rules and policies affecting BET. Whenever a committee
of the Commission's board is to consider policies and/or rules related to
BET for recommendation to the full board, the board's presiding officer shall
request that the chairman of the ECM participate in the committee's discussions
and deliberations as an ex officio member. When, in the discretion of the
board's presiding officer, one or more additional members of the ECM would
enhance the decision-making process by participating in the committee's actions,
the ECM chairman shall be requested to appoint one or more other ECM members
to participate. In all consideration and deliberations of such board committee,
any members of the ECM acting as ex officio members shall be entitled to fully
participate in all discussions and deliberations to the same extent as are
board committee members. ECM members participating in the committee process
shall be bound by the rules and procedures by which the committee operates
and by the management decisions made by the board committee chairman. The
nature of the participation by the ECM members is advisory and no member of
the ECM or any person who is not a member of the board may vote on any issue
requiring a vote by the committee members.
(e)
BET administrative decisions. In matters concerning the
administration of BET, the ultimate responsibility and authority for making
administrative decisions affecting BET is that of the Commission. The BET
director shall establish and maintain a continuing dialogue and exchange of
information with the ECM as to decisions regarding the administration of BET
and shall seek ECM input and advice on all decisions affecting the administration
of the program. In cooperation with the ECM chairman and such other additional
members of the ECM as the BET director deems necessary and appropriate, the
BET director shall develop and implement methods of establishing and maintaining
the dialogue and exchange of information. The methods developed shall be set
out in detail in a written format and shall be included in the BET manual.
(f)
Exclusions from participation. Neither the ECM nor any
member thereof nor any manager is an employee, officer, or official of the
State of Texas. Therefore, the ECM shall not participate in any decision-making
process regarding personnel of the Commission, personnel policies, or personnel
administration.
(g)
Structure. The ECM shall, to the extent possible, be composed
of managers who are representative of all managers in BET based on such factors
as geography and facility type and size. One representative shall be elected
from each designated ECM district created by the Commission and as may be
revised or modified from time to time.
(h)
Qualifications. Each candidate for election to the ECM
must:
(1)
be a manager in good standing;
(2)
have been an active, assigned manager for a minimum of
one year prior to nomination; and
(3)
be assigned to a facility in the ECM district he or she
is seeking to represent.
(i)
Nomination, election and replacement. The BET director
and the ECM shall establish and implement written procedures for the nomination,
election, and replacement of managers to the ECM. All such procedures shall
be included in the BET manual. No changes in any procedure for the nomination,
election, or replacement of ECM representatives shall be made without the
concurrence of a majority of the ECM. At a minimum, procedures established
pursuant to this subsection shall:
(1)
insure that all candidates are qualified;
(2)
insure that all managers receive notice of the election
procedures and of all dates and times for actions related to such elections
in a timely manner so as to allow full participation by managers in the nomination
and election process;
(3)
insure that each manager is provided an opportunity to
nominate and elect candidates from the manager's district;
(4)
allow for secret ballots; and
(5)
insure that only managers actually assigned to a facility
in the district are elected to represent the district on the ECM.
(j)
Changing districts. A member of the ECM shall automatically
be removed as a representative from a district when that member is no longer
assigned to a BET facility within the district from which elected.
(k)
Term of office. The term of office for ECM members shall
be two years beginning on January 1 following the election. Even- and odd-numbered
districts shall alternate election years. Any ECM member elected to fill a
vacancy shall serve the remainder of the unexpired term of the manager who
vacated a position.
(l)
Officers. The ECM shall select from among its members at
the first meeting of every year the chairperson and any other officers the
ECM may from time to time elect.
(m)
Meetings. The ECM shall meet once during each calendar
year for the purpose of electing officers and again as it may establish by
bylaw. It shall be the duty of the ECM chairman to provide to the BET director
with a written meeting agenda ten business days in advance of each meeting.
(n)
Internal procedures of the ECM. The ECM shall establish
bylaws to govern their internal operation and order of business and shall
provide the Commission with a copy.
(o)
Travel expenses. Expenses for travel, meals, lodging, or
other related expenses while the ECM representative is attending meetings
approved by the Commission shall be reimbursed by the Commission at the rate
allowed for travel by Commission staff. Travel for official business other
than attendance at approved ECM meetings shall be reimbursed only when the
travel is approved in advance by the BET director.
§167.13.Nondisciplinary Termination of License.
(a)
Causes for nondisciplinary termination. The license of
a manager shall be terminated upon the occurrence of any one of the following:
(1)
The manager's visual acuity is improved by any means to
the point at which the manager no longer satisfies the definition of blind.
(2)
The manager becomes otherwise permanently disabled and
as a result of such permanent disability is unable to perform the essential
functions of operating and maintaining a BET facility. Permanently disabled
is a condition that is medically documented and has existed or is expected
to exist for at least twelve months. The determination of permanently disabled
shall be made by the executive director or his designee after review of medical
documentation and other information relevant to the issue. Other information
relevant to the issue shall include recommendations from Commission staff
and the ECM, pertinent information from the manager's BET file or provided
by the manager, and reports of examinations or evaluations, if any, obtained
by the Commission and the manager.
(3)
The manager is unassigned and has not applied for an assignment
for a period of 12 consecutive months.
(b)
Examination and evaluation. In any situation in which the
vision or other disability of a manager is at issue with respect to termination
of a license, the Commission or the manager may require an examination or
evaluation by professionals to determine whether the manager is otherwise
permanently disabled and as a result of such permanent disability is unable
to perform the essential functions of operating and maintaining a BET facility.
The reports of such professionals shall be furnished to the executive director
and manager. Any failure of the manager to participate in required examinations
or evaluations shall be grounds for disciplinary action.
(c)
Restoration of license. A license terminated for nondisciplinary
reasons may be restored at the discretion of the executive director if the
condition or conditions causing the nondisciplinary termination have been
satisfactorily resolved. In considering a decision whether to restore a license
terminated for nondisciplinary reasons, the executive director shall consult
with appropriate BET staff, the ECM chairperson, and any advocate for the
manager and shall consider all pertinent information and/or documentation
provided by any of the persons described in this subsection.
(d)
Conditional restoration. If the executive director determines
that a license terminated for nondisciplinary reasons should be restored,
the executive director may condition the restoration of the license on any
reasonable matters, such as, by way of illustration, continued medical treatment
or therapy, or completion of refresher or other courses of training.
§167.14.Disciplinary Actions.
(a)
Causes for disciplinary action. The happening of any one
or more of the following acts or omissions by a manager shall result in disciplinary
action:
(1)
Failing to personally operate the assigned facility as
set forth in the permit or contract with the host and/or in the manager's
record of assignment unless prior approval to operate the facility in another
manner has been obtained from the Commission.
(2)
Failing to pay moneys due from the operation of the facility,
including, but not limited to, taxes, fees, or assessments to a governmental
entity or supplier, or knowingly giving false or deceptive information to
or failing to disclose required information to or misleading in any manner
a governmental entity (including the Commission) or a supplier.
(3)
Failing to file required financial and other records with
the Commission or preserve them for the time required by these policies and
procedures.
(4)
Failing to cooperate in a timely manner with audits conducted
by the Commission or other state or federal agencies.
(5)
Failing to maintain insurance coverage required by these
policies and procedures.
(6)
Using BET equipment or facility premises to operate another
business.
(7)
Failing to properly maintain facility equipment in a clean
and operable condition within the scope of the manager's level of maintenance
authorization.
(8)
Intentionally abusing, neglecting, using, or removing facility
equipment without written Commission authorization.
(9)
Substance abuse while operating a facility; or other abusive
use of substances that interferes with the operation of the facility.
(10)
Operating a BET facility in a manner that endangers the
Commission's investment in the facility.
(11)
Using privileged information concerning an existing facility
to compete with the Commission for the facility.
(12)
Failing to comply with any federal or state law prohibiting
discrimination and failure to assure services without distinction on the basis
of race, gender, color, national origin, religion, age, political affiliation,
or disability.
(13)
Failing to maintain the necessary skills and abilities
for effectively managing a facility.
(14)
Using a facility to conduct unlawful activities.
(15)
Failing to comply with the manager's responsibilities
under applicable law, these rules, the requirements of the BET manual, or
any proper and authorized instruction by Commission personnel.
(b)
Acts of improper contact. The participation in any one
or more of the following acts or omissions by a manager shall result in termination
of the manager's license:
(1)
Contacting or communicating with a member of a selection
panel or an applicant for a facility then being considered for assignment
for the purpose of influencing or manipulating, directly or indirectly, the
selection of an applicant for the facility being considered for assignment.
(2)
Causing another person to contact or communicate with a
member of a selection panel or an applicant for a facility then being considered
for assignment for the purpose of influencing or manipulating, directly or
indirectly, the selection of an applicant for the facility being considered
for assignment.
(3)
Giving or offering to give, directly or indirectly, expressly
or by implication, a thing of value, tangible or intangible, including promises
of future benefit, for the purpose of influencing or manipulating any decision
or process of BET.
(4)
Causing another person to give or offer to give, directly
or indirectly, expressly or by implication, a thing of value, tangible or
intangible, including promises of future benefit, for the purpose of influencing
or manipulating any decision or process of BET.
(c)
Disciplinary action pending an appeal. The Commission may
at its discretion suspend disciplinary action pending the outcome of an appeal.
(d)
Types of disciplinary actions. There are four types of
disciplinary actions:
(1)
Written reprimand. Written reprimand means a formal statement
describing violations of applicable law, these rules, the requirements of
the BET manual, or any proper and authorized instruction by Commission personnel.
(2)
Probation. Probation means allowing a manager to continue
in BET in an effort to satisfactorily remedy a condition that is not acceptable
under these rules. If the condition causing probation is satisfactorily remedied
within the time periods specified in the written notice of probation, the
probation will be lifted. If the unacceptable condition is not remedied within
the time specified, additional and more serious disciplinary actions may ensue.
When a manager who has been on probation three times in a three-year period
qualifies for probation for the fourth time within said three years, the Licensed
Manager's license may be revoked according to Commission procedures.
(3)
Loss of facility. Loss of facility means the removal of
a manager from the manager's current facility for disciplinary reasons.
(4)
Termination. Termination means the cessation of a license
issued to a manager to operate a facility and the removal of the manager from
BET.
(e)
Disciplinary procedures.
(1)
The Commission shall make the decision as to what disciplinary
action to take based upon the seriousness of the violation, the damage to
BET, and the manager's disciplinary record. The foregoing language notwithstanding,
when the act or omission alleged to be a matter requiring disciplinary action
is one or more of those described in subsection (b) of this section, the disciplinary
action to be taken shall in every case be termination of the license.
(2)
Upon receipt of information which indicates that disciplinary
action may be appropriate, the Commission shall take the following actions
prior to making a determination as to taking disciplinary action:
(A)
The Commission shall notify the manager in writing of the
allegations and reasons that disciplinary action is being considered. The
notice shall either be hand delivered and read to the manager, or it shall
be delivered to the manager's work or home address.
(B)
The manager shall have 5 business days to respond, either
in person or in writing, to the notice. The response shall be made to the
individual designated in the notice. After receiving the manager's response,
the Commission shall decide what disciplinary action, if any, is appropriate.
If no response is timely received from the manager, the Commission shall decide
what disciplinary action, if any, is to be taken without the manager's response.
(C)
If a decision is made to issue a written reprimand, the
written reprimand will be accompanied by a brief summary of the evidence justifying
the reprimand, suggested steps for correcting the violation, and consequences
of not correcting the violation. All reprimands shall contain notice of the
manager's right to appeal the reprimand and a statement that failure to correct
the violation may result in further disciplinary action.
(D)
If a decision is made to place a manager on probation,
the Commission shall deliver to the manager a letter of probation containing
the following:
(i)
the specific reasons for probation;
(ii)
the remedial action required to remove the manager from
probation;
(iii)
the time within which said remedial action must take
place;
(iv)
the consequences of failure to take remedial action within
the prescribed time frame; and
(v)
notice of the manager's right to appeal.
(E)
Upon satisfactory completion of the remedial action outlined
in the letter of probation, a manager shall be removed from probation.
(F)
Failure of the manager to complete remedial requirements
within the prescribed time frame shall result in one or more of the following
actions:
(i)
required training;
(ii)
extension of probation;
(iii)
restrictions on applying for another facility;
(iv)
removal from the facility;
(v)
termination of license.
(G)
If, after the manager has had an opportunity to respond,
a decision is made that sufficient grounds exist to remove the manager from
a facility, the Commission shall notify the manager in writing by hand delivery
or certified U. S. Mail, return receipt requested, that the manager's assignment
to the BET facility has been terminated and the manager must vacate the facility.
The removal letter shall contain the following information:
(i)
specific reasons for removal from the facility;
(ii)
actions required by the manager, if any;
(iii)
requirements for obtaining reassignment; and
(iv)
notice of the manager's right to appeal.
(H)
If, after the manager has had an opportunity to respond,
a decision is made that sufficient grounds exist for termination, the Commission
shall notify the manager in writing by hand delivery or certified U. S. Mail,
return receipt requested, that the Commission has decided that sufficient
cause exists to terminate the manager's license. The manager shall be instructed
to vacate the facility if the manager has not already done so. The termination
letter shall contain the following information:
(i)
specific reasons for termination;
(ii)
actions required by the manager, if any;
(iii)
procedures for applying for any other Commission services
for which the person may be eligible; and
(iv)
notice of the manager's rights under the Randolph-Sheppard
Act.
(3)
The provisions of paragraph (2) notwithstanding, pending
a determination with respect to disciplinary action, a manager may be removed
from a facility if the Commission considers such removal in the best interest
of BET.
(4)
During the license termination process, the manager shall
not be eligible for assignment to any other BET facility.
§167.15.Procedures for Resolution of Manager's Dissatisfaction.
(a)
Appealable actions. These rules provide the procedures
for managers who are dissatisfied with a Commission action arising from the
operation of BET.
(b)
Actions not subject to appeal. The phrase "Commission action
arising from the operation of BET" in subsection (a) does not include the
following actions of the Commission:
(1)
the hiring, firing or discipline of Commission employees;
(2)
the challenge of federal or state law, or rules previously
approved by the Secretary of Education pursuant to the Randolph-Sheppard Act;
or
(3)
an action by the Commission unless it is alleged that the
action is in violation of applicable law, these rules, the requirements of
the BET manual, any proper and authorized instruction by Commission personnel,
or is unreasonable. Unreasonable shall mean without rational basis or arbitrary
and capricious.
(c)
Commission discretion and sovereign immunity. The Commission
does not waive its right and duty to exercise its lawful and proper discretion.
The Commission does not waive its sovereign immunity.
(d)
Remedies. Remedies available to resolve dissatisfaction
shall correct the action complained of from the earlier time of:
(1)
agreement by the parties as to an appropriate remedy, or
(2)
a final resolution pursuant to the Randolph-Sheppard Act
that the Commission acted in violation of applicable law, these rules, the
requirements of the BET manual, any proper and authorized instruction by Commission
personnel, or acted unreasonably.
(e)
Informal administrative review. The manager has the right
to request an informal administrative review to resolve a dissatisfaction.
The purpose of an informal administrative review is to allow a manager a quick
means for resolving a dissatisfaction arising from the operation or administration
of BET. The Commission shall attempt to resolve complaints at the informal
administrative review level. Informal administrative reviews shall be conducted
according to the following:
(1)
The manager or manager's representative must submit a written
request for an informal administrative review no later than the 20th business
day after the occurrence of the disputed action. The request shall be considered
timely if it is either postmarked or delivered to the Commission within said
20 business days.
(2)
An informal administrative review shall be conducted only
by a member or members of the administrative staff of the Commission who have
not participated in the Commission action in question.
(3)
The written request for an informal administrative review
must describe with reasonable particularity the specific action sufficient
to provide notice as to the action which is alleged to be unreasonable or
in violation of applicable law, these rules, the requirements of the BET manual,
or any proper and authorized instruction by Commission personnel. The request
must, to the best of the Complainant's knowledge, contain the dates those
actions occurred and the law or regulation must be reasonably identified if
an action is alleged to be in violation of law, these rules, the requirements
of the BET manual, or regulation. The request must also identify the desired
relief or remedy.
(4)
The informal administrative review shall be held during
regular Commission working hours at a district or local office location. Unless
agreed otherwise by the parties, an informal administrative review shall be
conducted no later than the 45th business day after the date the Commission
receives the request.
(5)
Reader or other communication services, if needed, shall
be arranged for the manager by the Commission upon request by the manager
at least three business days prior to the review date.
(6)
The Commission staff member conducting the informal administrative
review shall determine whether the action arising out of the operation or
administration of BET was in violation of applicable law, these rules, the
requirements of the BET manual, any proper and authorized instruction by Commission
personnel or is unreasonable. If the action is found to be not in violation
of applicable law, these rules, the requirements of the BET manual, any proper
and authorized instruction by Commission personnel or not unreasonable, the
staff member shall not substitute his discretion for that of the discretion
exercised by the Commission.
(7)
The reviewing Commission staff member shall prepare brief
findings of fact, conclusions, and recommendations no later than the 10th
business day after the conclusion of the review. These shall be sent to the
executive director, who shall review them and make his own determination as
to whether to accept the findings, conclusions and recommendation of the reviewing
staff member. The executive director shall inform the manager of his decision
in writing no later than the 10th business day after receipt of the recommendation.
(8)
When an informal administrative review does not resolve
a dispute to the satisfaction of a manager, such manager may request a full
evidentiary hearing in accordance with the provisions of these rules and regulations.
(f)
Full evidentiary hearing. A manager has the right to request
a full evidentiary hearing to resolve a dissatisfaction according to the following:
(1)
A manager has the right to request a full evidentiary hearing
without first going through an informal administrative review.
(2)
A request for an evidentiary hearing must be made no later
than the 20th business day after the occurrence of the agency action about
which the manager complains. The executive director, upon request of the complaining
party, may extend the time period for filing a grievance upon the showing
of good cause by the complaining party for such additional period if such
request is made no later than the 20th business day after the occurrence of
the agency action about which the manager complains.
(3)
A manager requesting a full evidentiary hearing after the
conduct of an informal administrative review must request such hearing in
writing no later than the 20th business day after receipt of the executive
director's decision.
(4)
A request for a full evidentiary hearing must be in writing
and transmitted to the executive director. A request that is postmarked within
the applicable time frame shall be considered timely delivered if properly
posted.
(5)
The request for a full evidentiary hearing must describe
the specific action with reasonable particularity sufficient to provide notice
as to the action which is alleged to be unreasonable or in violation of applicable
law, these rules, the requirements of the BET manual, or any proper and authorized
instruction by Commission personnel. The request must, to the best of the
complainant's knowledge, contain the date the action occurred and the law
or regulation must be reasonably identified if an action is alleged to be
in violation of law, these rules, the requirements of the BET manual, or regulation.
The request must also identify the desired relief or remedy.
(6)
The manager may be represented in the evidentiary hearing
by legal counsel or other representative of the manager's choice, at the manager's
expense.
(7)
Reader or other communication services, if needed, shall
be arranged for the manager by the Commission upon request by the manager
at least three business days prior to the hearing date.
(8)
The manager shall be notified in writing of the time and
place fixed for the hearing and of the manager's right to be represented by
legal or other counsel.
(9)
The presiding officer at the hearing shall be an impartial
and qualified official who has no involvement either with the Commission action
which is at issue or with the administration or operation of BET.
(10)
Hearings shall be conducted in accordance with the Randolph-Sheppard
Act, these rules, and the State Office of Administrative Hearings (SOAH) procedures
for hearing contested case hearings contained in 1 TAC §105.1 et seq.
to the extent those procedures do not conflict with the Act or these rules.
(11)
Managers bringing complaints shall have the burden of
proving their cases by the preponderance of evidence. Managers shall present
their evidence first.
(12)
A record shall be made of the evidence and shall be made
available to the parties by the Commission no later than the 30th business
day after the close of the hearing.
(13)
The hearing officer shall issue a recommendation which
shall set forth the principal issues and relevant facts adduced at the hearing
and the applicable provisions of law, rule, the requirements of the BET manual,
or any proper and authorized instruction by Commission personnel. The recommendation
shall contain findings of fact and conclusions with respect to each of the
issues, and the reasons and bases for the conclusions.
(14)
In formulating a recommendation, the hearing officer shall
not evaluate whether the Commission's actions were wise, efficient, or effective.
Rather, the hearing officer is limited to determining whether the Commission's
actions were unreasonable, or violated applicable law, these rules, the requirements
of the BET manual, or any proper and authorized instruction by Commission
personnel.
(15)
Should the hearing officer find that the actions taken
by the Commission were unreasonable, or violated applicable law, these rules,
the requirements of the BET manual, or any proper and authorized instruction
by Commission personnel, the hearing officer shall also recommend any prospective
action necessary to correct the violations.
(16)
The hearing officer's recommendation shall be made no
later than the 30th business day after the receipt of the official transcript.
The recommendation shall be delivered promptly to the executive director.
(17)
The executive director shall review the recommendation
of the hearing officer and forward a decision to the manager no later than
the 20th business day after receipt of the hearing officer's recommendation.
(g)
Arbitration. A manager appealing the Commission's decision
must file a complaint with the Secretary of Education no later than the 20th
business day after receipt of such decision in conformity with the provisions
of Sec. 395.13 of the Act, pertaining to arbitration of vendor complaints.
§167.16.Establishing and Closing Facilities.
(a)
Establishing facilities.
(1)
On its own initiative, at the request of an agency that
controls federal or state property, or at the request of a private organization,
the Commission shall survey the property, blueprints, or other available information
concerning the property to determine whether the installation of a BET facility
is feasible and consonant with applicable laws and regulations and with the
Commission's vocational rehabilitation objectives.
(A)
If the installation of a BET facility is determined to
be feasible, the Commission shall proceed to develop plans for the establishment
of a facility in accordance with procedures promulgated and implemented by
the Commission staff and, when the facility is developed, shall assign a manager
to the facility.
(B)
If the Commission determines that the location being considered
for a BET facility is not appropriate for use in the program or that the creation
of the facility is not feasible and the location being considered is on state
property, then the following shall occur:
(i)
The BET director shall, no later than the 40th business
day after the date the location was brought to the attention of the Commission
or the Commission became aware of its possible use as a BET facility, certify
to the executive director that the location being considered is not appropriate
for BET use or that it is not feasible to establish a BET facility at the
location.
(ii)
The location shall be made available to the Texas Rehabilitation
Commission in accordance with state law.
(2)
The procedures set forth in this section shall apply whether
the consideration of a location is an initial or a subsequent review.
(b)
Maximizing employment opportunities.
(1)
On the effective date of this section, the Commission shall
hereafter maximize the number of employment opportunities for persons who
are blind by applying the procedures set forth in this subsection. This subsection
shall not affect the current assignment of any manager at the time this section
becomes effective.
(2)
Upon the opening of a new location or upon needing to advertise
and assign a manager to an existing facility, the Commission shall determine
whether the opportunity exists to increase the number of employment opportunities
for persons who are blind. The Commission shall increase the number of employment
opportunities in a location when all of the following circumstances exist:
(A)
The location must be physically suited to support the operation
of two or more BET facilities, such as, by way of illustration and not by
way of definition or limitation:
(i)
a single building in which two or more clearly separate
and distinct facilities can be located in two or more separate areas of the
building;
(ii)
a location comprised of a complex of buildings, each of
which can support one or more BET facilities; or
(iii)
a location that includes two or more clearly separate
and distinct sites that can support different operations, such as two or more
dining areas; a dining area and a site for vending machines; a cafeteria and
one or more other types of BET facilities; or any combination of the foregoing.
(B)
The creation of two or more facilities from one location
must provide from at least one of the facilities before set-aside fees an
income equal to or greater than 600% of the state median income of all managers
for the preceding year.
(C)
Once the requirement in subparagraph (B) is satisfied,
if any additional facility is not projected to provide before set-aside fee
an income of at least 200% of the state median income of all managers for
the preceding year, such site shall be assigned by the Commission as a satellite
location. Once the satellite location produces net proceeds in excess of 200%
of the state median income per year before set aside fees, it shall be advertised
for assignment as a full-time employment opportunity pursuant to these rules.
(D)
Once the requirement in subparagraph (B) is satisfied,
if at least one additional facility is projected to provide before set-aside
fee an income of at least 200% of the state median income of all managers
for the preceding year, then the Commission shall advertise such facility
or facilities pursuant to these rules.
(E)
There is no circumstance beyond the control of the Commission
which precludes assignment of more than one manager to the same location.
(F)
Under no circumstances shall more than one manager be assigned
to a clearly separate and distinct site regardless of income produced or any
other factors. Additionally, under no circumstances shall a site be divided
into separate facilities by any means other than by actual physical separation.
(G)
In those situations in which multiple managers are assigned
to a single location and the host of the location requires a single point
of contact, the Commission shall designate from among the managers assigned
to the location a directing manager to serve as the single point of contact.
The directing manager shall be compensated for these services in accordance
with policies for paying set-aside fees.
(c)
Closing facilities.
(1)
Except for temporary closings by Commission staff, no BET
facility shall be closed by the Commission until each of the following has
occurred:
(A)
The BET director has certified to the executive director
that the facility is no longer a feasible or viable BET facility and provides
reasons for that opinion.
(B)
The executive director has approved the proposed closing
of the facility.
(C)
The facility has been made available to the Texas Rehabilitation
Commission for operation of a facility by a person disabled by conditions
other than blindness if the location is on state property, and the Texas Rehabilitation
Commission has declined the facility.
(2)
All facility closings shall be reported to the Commission's
board at the regular meeting of the board next following such closing with
the reasons for the closing.
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 March 8, 2001.
TRD-200101416
Terrell I. Murphy
Executive Director
Texas Commission for the Blind
Earliest possible date of adoption: April 22, 2001
For further information, please call: (512) 377-0611
Chapter 338.
EXEMPTED RESIDENTIAL REAL ESTATE-RELATED TRANSACTIONS
AFDC
] Ineligibility.
aid to families with dependent children
(AFDC)
] before being tested for eligibility under RCA.
AFDC
] rules.
AFDC
] rules.
AFDC
] program.
Subchapter C. ELIGIBILITY DETERMINATION
personal
] interview with a
Texas Department of Human
Services (DHS) advisor
[
caseworker
].
AFDC
] rules apply to RCA
[
except:
]
including an earned income disregard.
(1)
(2)
AFDC
] rules.
AFDC
] rules are used for RCA.
Financial ] Management.
AFDC
]
rules.
Subchapter D. ELIGIBILITY FOR OTHER PROGRAMS
AFDC
] or RCA, DHS considers the
household a public assistance case. If the refugee group is residing with
other persons who are not recipients of RCA or
TANF
[
AFDC
], DHS considers the household a non-public assistance case.
AFDC
] Medically Needy Program rules except:
AFDC
] medical programs.
the refugee
must meet all RCA eligibility requirements except work registration.
]
Family ] Self-support Services.
family
] self-support services
if they meet eligibility requirements
.
[
outlined in family
self-support rules.
]
Services, such as English as a Second Language
or job placements, are offered by local Voluntary Resettlement Agencies (VOLAGs).
Subchapter E. CLIENT REPORTING REQUIREMENTS
AFDC
] rules.
Subchapter F. PENALTY PROVISIONS
AFDC
] rules are used
for RCA for refusal to comply with employment services requirements, including
failure to appear for an interview, failure to apply for or accept employment,
or failure to participate in training.
AFDC
] rules regarding fraud, referral,
recoupment of overpayments, and the right to appeal apply to RCA.
AFDC
] rules are met.
Chapter 19.
NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION
(94)
] Patient care-related electrical
appliance - An electrical appliance that is intended to be used for diagnostic,
therapeutic, or monitoring purposes in a patient care area, as defined in
Standard 99 of the National Fire Protection Association.
(95)
] Person - An individual,
firm, partnership, corporation, association, joint stock company, limited
partnership, limited liability company, or any other legal entity, including
a legal successor of those entities.
(96)
] Person with a disclosable
interest - A person with a disclosable interest is any person who owns at
least a 5.0% interest in any corporation, partnership, or other business entity
that is required to be licensed under Health and Safety Code, Chapter 242.
A person with a disclosable interest does not include a bank, savings and
loan, savings bank, trust company, building and loan association, credit union,
individual loan and thrift company, investment banking firm, or insurance
company, unless these entities participate in the management of the facility.
(97)
] Pharmacist - An individual,
licensed by the Texas State Board of Pharmacy to practice pharmacy, who prepares
and dispenses medications prescribed by a physician, dentist, or podiatrist.
(98)
] Physical restraint - See
Restraints (physical).
(99)
] Physician - A doctor of
medicine or osteopathy currently licensed by the Texas State Board of Medical
Examiners.
(100)
] Physician assistant (PA)
-
(101)
] Podiatrist - A practitioner
whose profession encompasses the care and treatment of feet who is licensed
by the Texas State Board of Podiatry Examiners.
(102)
] Poison - Any substance
that federal or state regulations require the manufacturer to label as a poison
and is to be used externally by the consumer from the original manufacturer's
container. Drugs to be taken internally which contain the manufacturer's poison
label, but are dispensed by a pharmacist only by or on the prescription order
of a physician, are not considered a poison, unless regulations specifically
require poison labeling by the pharmacist.
(103)
] Practitioner - A physician,
podiatrist, or dentist, when relating to Pharmacy Services.
(104)
] Preadmission medical necessity
determination - The determination of need for nursing facility care before
the individual's admission into the nursing facility. This determination is
valid until admission into a nursing facility or up to 30 days from the effective
date.
(105)
] PRN (pro re nata) - As
needed.
(106)
] Provider - The individual
or legal business entity that is contractually responsible for providing Medicaid
services under an agreement with DHS.
(107)
] Psychoactive drugs - Drugs
prescribed to control mood, mental status, or behavior.
(108)
] Qualified surveyor - An
employee of DHS who has completed state and federal training on the survey
process and passed a federal standardized exam.
(109)
] Quality assessment and
assurance committee - A group of health care professionals in a facility who
develop and implement appropriate action to identify and rectify substandard
care and deficient facility practice.
(110)
] Recipient - Any individual
residing in a Medicaid certified facility or a Medicaid certified distinct
part of a facility whose daily vendor rate is paid by Medicaid.
(111)
] Registered nurse (RN)
- An individual currently licensed by the Board of Nurse Examiners for the
State of Texas as a Registered Nurse in the State of Texas.
(112)
] Reimbursement methodology
- The method by which DHS determines nursing facility per diem rates.
(113)
] Remodeling - The construction,
removal, or relocation of walls and partitions, the construction of foundations,
floors, or ceiling-roof assemblies, the expanding or altering of safety systems
(including, but not limited to, sprinkler, fire alarm, and emergency systems)
or the conversion of space in a facility to a different use.
(114)
] Renovation - The restoration
to a former better state by cleaning, repairing, or rebuilding, including,
but not limited to, routine maintenance, repairs, equipment replacement, painting.
(115)
] Representative payee -
A person designated by the Social Security Administration to receive and disburse
benefits, act in the best interest of the beneficiary, and ensure that benefits
will be used according to the beneficiary's needs.
(116)
] Resident - Any individual
residing in a nursing facility.
(117)
] Resident assessment instrument
(RAI) - An assessment tool utilized to conduct comprehensive, accurate, standardized,
and reproducible assessments of each resident's functional capacity as specified
by the Secretary of the U.S. Department of Health and Human Services. At a
minimum, this instrument must consist of the Minimum Data Set (MDS) core elements
as specified by the Health Care Financing Administration (HCFA); utilization
guidelines; and Resident Assessment Protocols (RAPS).
(118)
] Responsible party - An
individual authorized by the resident to act for him as an official delegate
or agent. Responsible party is usually a family member or relative, but may
be a legal guardian or other individual. Authorization may be in writing or
verbal.
(119)
] Restraints (chemical)
- Psychoactive drugs administered for the purposes of discipline, or convenience,
and not required to treat the resident's medical symptoms.
(120)
] Restraints (physical)
- Any manual method, or physical or mechanical device, material or equipment
attached, or adjacent to the resident's body, that the individual cannot remove
easily which restricts freedom of movement or normal access to one's body.
(121)
] Secretary - Secretary
of Health and Human Services.
(122)
] Services required on a
regular basis - Services which are provided at fixed or recurring intervals
and are needed so frequently that it would be impractical to provide the services
in a home or family setting. Services required on a regular basis include
continuous or periodic nursing observation, assessment, and intervention in
all areas of resident care.
(123)
] SNF - A skilled nursing
facility or distinct part of a facility that participates in the Medicare
program. SNF requirements apply when a certified facility is billing Medicare
for a resident's per diem rate.
(124)
] Social Security Administration
- Federal agency for administration of social security benefits. Local social
security administration offices take applications for Medicare, assist beneficiaries
in filing claims, and provide information about the Medicare program.
(125)
] Social Worker - A qualified
social worker is an individual who is licensed, or provisionally licensed,
by the Texas State Board of Social Work Examiners as prescribed by Chapter
50 of the Human Resources Code and who has at least:
(126)
] Standards - The minimum
conditions, requirements, and criteria established in this chapter with which
an institution must comply to be licensed under this chapter.
(127)
] State plan - A formal
plan for the medical assistance program, submitted to HCFA, in which the State
of Texas agrees to administer the program in accordance with the provisions
of the State Plan, the requirements of Titles XVIII and XIX, and all applicable
federal regulations and other official issuances of the United States Department
of Health and Human Services.
(128)
] State survey agency -
The Texas Department of Human Services is the agency, which through contractual
agreement with the single state agency, is designated as the agency responsible
for Title XIX survey and certification of nursing facilities and utilization
review in the Title XIX nursing facilities.
(129)
] Supervising physician
- A physician who assumes responsibility and legal liability for services
rendered by a physician assistant (PA) and has been approved by the Texas
State Board of Medical Examiners to supervise services rendered by specific
Pas. A supervising physician may also be a physician who provides general
supervision of a nurse practitioner providing services in a nursing facility.
(130)
] Supervision - General
supervision, unless otherwise identified.
(131)
] Supervision (direct) -
Authoritative procedural guidance by a qualified person for the accomplishment
of a function or activity within his sphere of competence. If the person being
supervised does not meet assistant-level qualifications specified in this
chapter and in federal regulations, the supervisor must be on the premises
and directly supervising.
(132)
] Supervision (general)
- Authoritative procedural guidance by a qualified person for the accomplishment
of a function or activity within his sphere of competence. The person being
supervised must have access to the licensed and/or qualified person providing
the supervision.
(133)
] Supervision (intermittent)
- Authoritative procedural guidance by a qualified person for the accomplishment
of a function or activity within his sphere of competence, with initial direction
and periodic inspection of the actual act of accomplishing the function or
activity. The person being supervised must have access to the licensed and/or
qualified person providing the supervision.
(134)
]
Texas Register
- A publication of the Texas Register Publications Section
of the Office of the Secretary of State which contains emergency, proposed,
withdrawn, and adopted rules issued by Texas state agencies. The
Texas Register
was established by the Administrative Procedure and
Texas Register Act of 1975.
(135)
] Therapeutic diet - A diet
ordered by a physician as part of treatment for a disease or clinical condition,
in order to eliminate, decrease, or increase certain substances in the diet
or to provide food which has been altered to make it easier for the resident
to eat.
(136)
] Therapy week - A seven-day
period beginning the first day rehabilitation therapy or restorative nursing
care is given. All subsequent therapy weeks for a particular individual will
begin on that day of the week.
(137)
] Threatened violation -
A situation which, unless immediate steps are taken to correct, may cause
injury or harm to a resident's health and safety.
(138)
] TILE - Texas Index for
Level of Effort; an index of 11 categories plus a default that consists of
relative resource utilization groups. The index determines where a nursing
facility client fits based upon service and care requirements. It determines
the daily rate to be paid on behalf of the client.
(139)
] TILE 202 restorative nursing
- Nursing care and practices, based on a plan of care developed by the restorative
team, designed to maintain or improve on goals achieved during physical or
occupational therapy. Examples of TILE 202 restorative nursing include training
and skill practice in self-feeding, bed mobility, transfers, ambulation, dressing
or grooming, and active range of motion.
(140)
] TILE error - Inaccuracies
in a CARE form assessment of a Medicaid recipient which result in an incorrect
TILE classification.
(141)
] Title II - Retirement
Survivors' Disability Insurance of the Social Security Act.
(142)
] Title XVI - Supplemental
Security Income (SSI) of the Social Security Act.
(143)
] Title XVIII - Medicare
provisions of the Social Security Act.
(144)
] Title XIX - Medicaid provisions
of the Social Security Act.
(145)
] Total health status -
Includes functional status, medical care, nursing care, nutritional status,
rehabilitation and restorative potential, activities potential, cognitive
status, oral health status, psychosocial status, and sensory and physical
impairments.
(146)
] TXMHMR - Texas Department
of Mental Health and Mental Retardation.
(147)
] UAR - DHS's Utilization
and Assessment Review Section.
(148)
] Uniform data set - See
Resident Assessment Instrument (RAI).
(149)
] Universal precautions
- The use of barrier and other precautions by long term care facility employees
and/or contract agents to prevent the spread of blood-borne diseases.
(150)
] Utilization review committee
- The group of health care professionals contracted by DHS to make individual
determinations of medical necessity regarding nursing facility care. The Utilization
Review Committee consists of physicians and registered nurses.
(151)
] Vendor payment - Payment
made by DHS on a daily-rate basis for services delivered to recipients in
Medicaid- certified nursing facilities. Vendor payment is based on the nursing
facility's claim approval of the DHS-generated Nursing Facility Billing Statement
to DHS. The Nursing Facility Billing Statement, subject to adjustments and
corrections, is prepared from information submitted by the nursing facility
which is currently on file in the computer system as of the billing date.
Vendor payment is made at periodic intervals, but not less than once per month
for services rendered during the previous billing cycle.
(152)
] Working day - Any 24-hour
period, Monday through Friday, excluding state and federal holidays.
Subchapter I. RESIDENT ASSESSMENT
(c)
] The services provided or arranged
by the facility must:
(d)
] The care plan must be made
available to all direct care staff.
Chapter 68.
BUSINESS SERVICES
Part 4.
TEXAS COMMISSION FOR THE BLIND
Chapter 167.
BUSINESS ENTERPRISES OF TEXAS
Part 11.
TEXAS COMMISSION ON HUMAN RIGHTS