25 TAC §§417.151 - 417.158
The Texas Department of Mental Health and Mental Retardation
(TDMHMR) proposes new §§417.151 - 417.158 of Chapter 417, Subchapter
D, concerning permanent improvements donated by individuals or groups. Existing §§410.101
- 410.122 of Chapter 410, Subchapter C, concerning the same, which the new
sections would replace, are contemporaneously proposed for repeal in this
issue of the
Texas Register
.
The subchapter would describe the procedures for individuals and community
groups to provide all or part of a permanent improvement to a facility.
A key difference between the proposed new sections and the sections proposed
for repeal is that the TDMHMR Proposed Real Property Change Form has been
added to provide facility CEOs and Central Office division directors with
the opportunity to review positive and negative implications associated with
the implementation of the permanent improvement.
Cindy Brown, chief financial officer, has determined that for each year
of the first five years the proposed new rules are in effect, enforcing or
administering the rules does not have foreseeable significant implications
relating to cost or revenue of the state or local governments because the
proposed new rules are not significantly different from the rules proposed
for repeal.
William R. Campbell, deputy commissioner for Finance and Administration,
has determined that, for each year of the first five years the proposed new
rules are in effect, the public benefit expected is the provision of clear
and concise information regarding the donation and implementation of permanent
improvements. It is anticipated that there would be no additional economic
cost to persons required to comply with the proposed rules because they do
not impose additional requirements on such persons.
It is anticipated that the proposed new rules will not affect a local economy
because the rules do not significantly alter the requirements included in
the rules proposed for repeal, which did not affect a local economy.
It is anticipated that the proposed new rules will not have an adverse
economic effect on small businesses or microbusinesses because the rules do
not significantly alter the requirements included in the rules proposed for
repeal.
Written comments on the proposal may be sent to Linda Logan, director,
Policy Development, Texas Department of Mental Health and Mental Retardation,
P.O. Box 12668, Austin, Texas 78711-2668, within 30 days of publication.
These sections are proposed under the Texas Health and Safety
Code, §532.015(a), which provides the Texas Mental Health and Mental
Retardation Board with broad rulemaking authority.
These proposed sections would affect no statute, article, or code.
§417.151.Purpose.
The purpose of this subchapter is to establish policies and procedures
for donating and completing a permanent improvement.
§417.152.Application.
The provisions of this subchapter apply to situations in which donor
proposes to donate cash to a facility for a permanent improvement or a completed
permanent improvement.
§417.153.Definitions.
The following words and terms, when used in this subchapter, have the
following meanings, unless the context clearly indicates otherwise.
(1)
Asset Management--The Central Office division whose staff
are responsible for overseeing TDMHMR's real property.
(2)
Board--The Texas Board of Mental Health and Mental Retardation.
(3)
Bond--A contract agreement pledging surety for financial
loss caused to another by the act or default of a third person or by some
contingency over which the third person may have no control.
(4)
Business entity--A sole proprietorship (including a person),
partnership, firm, corporation, holding company, joint-stock company, receivership,
trust, or any other entity recognized by law.
(5)
Central Office (CO)--The Texas Department of Mental Health
and Mental Retardation, located at 909 West 45th Street, Austin.
(6)
Central Office (CO) Community Relations--The Central Office
division whose staff are responsible for providing support to facility community
relations programs, including volunteer services, nonprofit management, and
fundraising.
(7)
Commissioner--The commissioner of the Texas Department
of Mental Health and Mental Retardation.
(8)
Community group--A volunteer services council affiliated
with TDMHMR or a group of people associated with an organization (e.g. civic,
fraternal, corporate, religious, social, service, community, or educational.
(9)
Contract documents--The owner/contractor agreement that
describes the conditions of the contract (e.g., general, supplementary, and
other conditions), contractor's bid (or bid in lieu of proposal), invitation
and instructions to bidders, drawings, specifications, and all addenda issued
prior to, and all modifications issued after execution of the contract. The
contract documents form the contract that represents the entire integrated
agreement between the owner and the contractor and supersedes all prior negotiations,
representations, or agreements, either written or oral. The contract documents
are complementary and what is required by any one document is as binding as
if required by all the documents.
(10)
Contractor--The business entity that has been awarded
the contract for implementing a specific permanent improvement.
(11)
Design professional--An architect or engineer who is licensed
by the state of Texas to perform activities within the scope of professional
architecture or professional engineering.
(12)
Donor--A person or community group who wants to donate
a permanent improvement.
(13)
Director, facility community relations--The staff person
who is responsible for coordinating the community relations functions, volunteer
programs, and fundraising at a facility.
(14)
Facility--A state school, state hospital, state center,
or other real property, except Central Office, that is operated by the Texas
Department of Mental Health and Mental Retardation (TDMHMR).
(15)
Facility chief executive officer (CEO)--The chief administrator
of a facility.
(16)
Local project manager--A facility staff person designated
by the permanent improvement committee who acts on behalf of the committee
in dealing with the design professional and contractor for the duration of
the improvement.
(17)
Maintenance and Construction- The division at Central
Office whose staff are responsible for the administration of the department
capital construction program.
(18)
Maintenance and Construction (MC) project manager--A Central
Office Maintenance and Construction staff person who acts as TDMHMR's representative
for the duration of a permanent improvement and as an advisor to assigned
facilities and the permanent improvement committee in matters relating to
an improvement.
(19)
Major project--A proposed permanent improvement that is
estimated to cost $25,000 or more and/or requires $10,000 or more of additional
annual operating funds.
(20)
Minor project--A proposed improvement that is estimated
to cost under $25,000 and requires less than $10,000 of additional annual
operating funds.
(21)
Permanent improvement (improvement)--A facility improvement
that requires construction (e.g., new building, building addition, building
remodeling, building renovation, structural changes to an existing building,
gazebo or pavilion, road, sidewalk, fountain, pond, and any improvement that
requires installation or extension of a mechanical, electrical, plumbing,
or other utility system.) For the purpose of this subchapter only, projects
consisting of landscaping, equipment replacement, or building system replacement
are not considered a permanent improvement.
(22)
Permanent improvement committee (committee)--The committee
that is appointed by the Volunteer Services Council for the purpose of overseeing
and/or donating a permanent improvement.
(23)
Plant maintenance manager--The staff person who is responsible
for managing plant maintenance activities at a state hospital, state school,
or state center and serves as a non voting member of the permanent improvement
committee.
(24)
SMHMRFs--State Mental Health and Mental Retardation Facilities.
(25)
TDMHMR--The Texas Department of Mental Health and Mental
Retardation.
(26)
Volunteer services council (VSC)--A facility's 501(c)(3)
organization that is formed for generating resources on behalf of the facility
and to appoint a permanent improvement committee to implement permanent improvements.
(27)
Volunteer services council (VSC) chair--The primary officer
of the board of directors of the facility volunteer services council, elected
according to the VSC bylaws.
§417.154.Proposal Review and Approval Authority.
(a)
If a donor proposes to make a cash donation for the specific
purpose of constructing a permanent improvement, the proposal must be reviewed
according to §417.155 (a)-(c) of this title (relating to Permanent Improvement
Approval Process). If the proposal is approved, the cash donation must be
accepted by TDMHMR and used to design and construct the proposed improvement.
Improvements must be implemented according to construction procedures described
in the Plant Maintenance Operating Instruction (407-3) or as part of the TDMHMR's
capital construction program that is administered by Maintenance and Construction
staff. Upon acceptance by TDMHMR, the donor is provided with periodic project
status reports and notified by the facility CEO when construction is complete.
(b)
If a donor proposes to construct a permanent improvement
on facility grounds, the proposed improvement must be reviewed and approved
according to §417.155 of this title (relating to Permanent Improvement
Approval Process).
§417.155.Permanent Improvement Approval Process.
(a)
Approval process. The permanent improvement approval process
is described in this subchapter. More detailed information about the process
is described in the
TDMHMR Permanent Improvement
Program Manual.
(b)
Concept description. A letter must be submitted by the
director, facility community relations and facility CEO describing the concept
of the proposed improvement. The concept is reviewed and approved by the appropriate
director, SMHMRFs, and the commissioner.
(c)
Preliminary proposal. A preliminary proposal, i.e., the
TDMHMR Proposed Real Property Change Form, which is referenced as Exhibit
A in §417.156 of this title (relating to Exhibit), must be completed
for a proposed improvement by the director, facility community relations;
VSC chair; and donor, as appropriate, and submitted to the facility CEO to
provide the facility CEO and Central Office (CO) staff with an opportunity
early in the process to identify issues and opportunities associated with
the improvement and to provide the donor with feedback.
(d)
Formal proposal. A formal proposal must be completed and
submitted to the director, CO Community Relations for each proposed improvement
including a description of the improvement that is developed jointly by the
facility CEO and director, facility community relations, and the design professional
(if available) to establish the function and scope of the improvement. A proposed
name for the completed improvement may be included in the formal proposal.
A formal proposal for a minor project is approved by the commissioner and
a formal proposal for a major project is approved by the board.
(e)
Schematic design. Upon approval of the formal proposal,
a schematic design for each improvement is developed by the permanent improvement
committee in conjunction with a design professional to illustrate the scope
of the project, its relationship to the site and adjacent structures, and
the probable cost. The completed schematic design is submitted by the VSC
chair and facility CEO who submits it to the commissioner for approval.
(1)
Permanent improvement committee. The executive committee
of the VSC board of directors appoints a permanent improvement committee for
each improvement that is comprised of:
(A)
voting VSC members who are individuals from the community;
and
(B)
non voting, permanent members of the committee include
the facility CEO; director, facility community relations; facility business
manager plant maintenance manager; MC project manager; and the local project
manager to oversee the implementation of the improvement.
(2)
Design professional. Unless waived by the director, Maintenance
and Construction, each improvement must be underwritten by a design professional.
The design professional shall solicit input from the permanent improvement
committee and prepare the schematic design based upon the approved formal
proposal.
(3)
Fundraising expenses. With board approval, the committee
is responsible for organizing and conducting fundraising activities. A rendition
can be a brochure or portfolio that may include a project narrative, drawings,
budget information, pledge card, or information on how a donor may participate
in implementing the improvement.
(f)
Design development. Except as provided by subsection (f)(2)
of this subsection, upon approval of the schematic design, the design professional
prepares the drawings and specifications necessary to establish the size and
character of the improvement, including the structural, mechanical, and electrical
systems, and the types of materials necessary to implement the improvement,
including a reevaluation and adjustment to the statement of probable cost
as necessary.
(1)
Design development documents are submitted by the permanent
improvement committee to the director, Maintenance and Construction, for approval.
(2)
Based upon the advice of the design professional, the permanent
improvement committee may request that the director, Maintenance and Construction
exempt the improvement from the requirement to prepare design development
documents for smaller, less complex improvements.
(g)
Contract documents. Upon approval of or exemption from
completing the design development documents, the design professional prepares,
develops, or obtains working drawings and specifications in sufficient detail
to implement the improvement, bidding information (including reevaluating
and adjusting the previous statement of probable construction costs based
on any changes in the improvement's scope or requirements), and any and all
documents and permits from government or other agencies with jurisdiction
over the improvement.
(1)
Approval. The completed contract documents are submitted
to the commissioner for approval.
(2)
Modification. If the contract documents are modified in
any way from the condition in which they were approved by the commissioner,
they must be resubmitted for approval before such modifications to the improvement
may be implemented.
(3)
Right to reject. The contract documents must reserve the
committee's right to reject any and all bids in the event the minimum cost
of the improvement exceeds the available funding.
(4)
Escrow funds. The committee must ensure that sufficient
funds are available to pay for the total cost of the improvement prior to
beginning construction. A letter from the committee that is certified by the
VSC chair verifying that the required amount of funds has been placed in an
interest bearing, escrow account that is insured by state or federal law is
submitted to the commissioner prior to executing any contract pertaining to
construction of the improvement.
(h)
Construction and oversight. The committee is responsible
for construction oversight of the improvement through completion according
to the requirements described in the contract documents.
(1)
Volunteers. Based on the recommendation of the design professional
and with the approval of the director, Maintenance and Construction, the committee
may enlist the service of volunteers to construct smaller, less complex improvements.
(2)
Contractors. If volunteers are not enlisted to construct
the improvement, the committee with the assistance from the design professional
must ensure that a qualified contractor is enlisted to construct the improvement
according to the provisions specified in the contract documents.
(i)
Completing and accepting an improvement. Upon completing
the improvement, the VSC chairman or designee notifies the commissioner in
writing that the committee is ready to convey the improvement to the state.
A final inspection of the improvement is conducted by Maintenance and Construction
staff to verify that the improvement is free of deficiencies. Upon receiving
such verification, the commissioner acknowledges acceptance of the improvement
in writing to the facility CEO, VSC chair, and the donor. At that time, TDMHMR
and the facility at which the improvement is located assume responsibility
for the use and maintenance of the improvement.
§417.156.Exhibit.
This subchapter references Exhibit A - TDMHMR Proposed Real Property
Change Form, copies of which are available by contacting TDMHMR, Asset Management,
P.O. Box 12668, Austin, TX 78711-2668.
§417.157.Reference.
Reference is made to the TDMHMR Permanent Improvement Program Manual.
§417.158.Distribution.
(a)
The subchapter is distributed to the board, commissioner,
medical director; deputy commissioners, Community Programs and Finance and
Administration; directors, SMHMRFs; Central Office program staff; and facility
CEOs.
(b)
The facility CEO is responsible for the disseminating this
subchapter to appropriate staff.
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 18, 2002.
TRD-200201667
Andrew Hardin
Chairman, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Earliest possible date of adoption: April 28, 2002
For further information, please call: (512) 206-4516