TITLE 25.HEALTH SERVICES

Part 2. TEXAS DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION

Chapter 403. OTHER AGENCIES AND THE PUBLIC

Subchapter M. USE OF DEPARTMENTAL FACILITIES BY PUBLIC EMPLOYEE ORGANIZATIONS

25 TAC §§403.351 - 403.359

(Editor's note: The text of the following sections proposed for repeal will not be published.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 Department of Mental Health and Mental Retardation or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The Texas Department of Mental Health and Mental Retardation (department) proposes the repeals of existing §§403.351-403.359 of Chapter 403, Subchapter M, concerning Use of Department Facilities by Public Employee Organizations. New Chapter 417, Subchapter A, concerning substantially the same matters is contemporaneously proposed in the this issue of the Texas Register .

Sections 403.351-403.359 authorized a facility CEO to permit public employee organizations to use department facilities, as long as service delivery is not affected by the presence of the organization's members and procedures for such organizations to request permission to use department facilities. The proposed repeals of the existing sections and the proposal of the new sections are made according to the department's rule review plan as required by Texas Government Code, §2001.039.

Cindy Brown, chief financial officer, has determined that for each of the first five years the proposed repeals are in effect, enforcing or administering the sections would not have implications relating to costs or revenues for state or local government because the proposed new rules do not significantly alter the requirements included in the repealed rules, which did not have implications relating to costs or revenues for state or local government.

William R. Campbell, deputy commissioner for finance and administration, has determined that for each year of the first five years that the repeals as proposed are in effect, the public benefit will be the existence of a concise and relevant body of policy documents. There would be no anticipated economic cost to small or large businesses persons who are required to comply with the proposed repeals because the repealed rules are not significantly different from the requirements included in the proposed new rules.

It is anticipated that the repealed rules would not affect a local economy because the rules are not significantly different from the requirements included in the proposed new rules, which do not affect a local economy.

It is anticipated that the repealed rules would not have an adverse economic effect on small businesses or microbusinesses because the rules do not significantly alter the requirement included in the proposed new rules.

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.

The repeals are proposed under the Texas Health and Safety Code, §532.015, which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority and Texas Government Code, §2001.039, which requires the department to review its rules.

The sections affect the Texas Government Code, §2001.039.

§403.351.Purpose.

§403.352.Application.

§403.353.Definitions.

§403.354.Advance Approval Required for Meetings; Information Required To Be in the Request for Permission to Use Departmental Facilities.

§403.355.Duration of Permission Granted for Use of Departmental Facilities.

§403.356.Equality of Treatment Among All Public Employee Organizations.

§403.357.Statutory Reference.

§403.358.Distribution.

§403.359.Effective Date.

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 April 29, 2002.

Chairman, Texas MHMR Board

Texas Department of Mental Health and Mental Retardation

Earliest possible date of adoption: June 9, 2002

For further information, please call: (512) 206-4516

Chapter 407. INTERNAL FACILITIES MANAGEMENT

Subchapter D. INSCRIPTION ON STATE VEHICLES

25 TAC §407.171

(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 Mental Health and Mental Retardation or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The Texas Department of Mental Health and Mental Retardation (department) proposes the repeal of existing §407.171 of Chapter 407, Subchapter D, concerning inscription on state vehicles. The proposal of new Chapter 417, Subchapter A, concerning substantially the same matter is contemporaneously proposed in this issue of the Texas Register .

Section §407.171 justified the department's exemption from the state vehicle inscription requirement. The proposal of the repeal of the existing section and the proposal of the new section are made according to the department's rule review plan as required by the Texas Government Code, §2001.039.

Cindy Brown, chief financial officer, has determined that for each of the first five years the proposed repeal is in effect, enforcing or administering the sections would not have implications relating to costs or revenues for state or local government because the proposed new rules do not significantly alter the requirements included in the repealed rules, which did not have implications relating to costs or revenues for state or local government.

Sharon Hunter, director, Support Services, has determined that for each year of the first five years that the proposed repeal is in effect, the public benefit would be the existence of a concise and relevant body of policy documents. There would be no effect on small or large businesses or on individuals because the rules do not significantly alter the requirements included in the rules proposed for repeal.

No local economic impact is anticipated as a result of repealing the sections because the repealed rules are not significantly different from the requirements included in the proposed new rules, which do not affect local economy.

It is anticipated that the repealed rules would not have an adverse economic effect on small businesses or microbusinesses because the rules do not significantly alter the requirement included in the proposed new rules.

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.

The repeal is proposed under the Texas Health and Safety Code, §532.015, which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority; Texas Transportation Code, Chapter 721, which requires the department to adopt rules to justify its exemption from the state vehicle inscription requirement; and Texas Government Code, §2001.039, which requires the department to review its rules.

The sections affect the Texas Health and Safety Code, §532.015; Texas Human Resources Code, §32.021, Texas Government Code, §531.021 and §2001.039; and Texas Transportation Code, Chapter 721.

§407.171.Inscription on State Vehicles.

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 April 29, 2002.

Chairman, Texas MHMR Board

Texas Department of Mental Health and Mental Retardation

Earliest possible date of adoption: June 9, 2002

For further information, please call: (512) 206-4516

Chapter 410. VOLUNTEER SERVICES AND PUBLIC INFORMATION

Subchapter C. CAPITAL IMPROVEMENTS BY CITIZEN GROUPS

25 TAC §§410.101 - 410.122

(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 Department of Mental Health and Mental Retardation or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The Texas Department of Mental Health and Mental Retardation (TDMHMR) proposes the repeal of existing §§410.101 - 417.122 of Chapter 410, Subchapter C, concerning capital improvements by citizen groups. New §§417.151 - 417.158 of Chapter 417, Subchapter D, concerning the same are contemporaneously proposed in this issue of the Texas Register .

The subchapter would describe the procedures for citizens and community groups to provide all or part of a capital improvement to a facility.

The key differences between the sections proposed for repeal and the new sections would be a new subchapter title (i.e., Permanent Improvements Donated by Individuals or Community Groups) to avoid confusion between capital improvement projects and capital construction projects, the required use of a new form (i.e., TDMHMR Proposed Real Property Change Form) to provide administrative and management staff with the opportunity to review positive and negative implications associated with implementing the permanent improvement, and the requirement that an endowment fund be established and maintained by the volunteer services council to pay the operating expenses for some capital improvements.

Cindy Brown, chief financial officer, has determined that for each year of the first five years the repealed 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 rules proposed for repeal are in effect, the public benefit expected would be the existence of a concise and relevant body of policy documents.

It is anticipated that there would be no additional economic cost to persons required to comply with the proposed repeals because they do not impose additional requirements on such persons.

No local economic impact is anticipated as a result of repealing the sections because the current sections did not affect a local economy.

It is anticipated that the rules proposed for repeal would not have an adverse economic effect on small businesses or micro businesses because the rules do not significantly alter the requirements included in the proposed new rules.

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 for repealed 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.

§410.101.Purpose.

§410.102.Application.

§410.103.Definitions.

§410.104.Initial Contact with Persons Desiring to Provide Capital Improvements; the Nature of the Volunteer Services Council.

§410.105.Appointment of Capital Improvement Committee.

§410.106.Functions and Responsibilities of the Capital Improvement Committee.

§410.107.Retaining a Design Professional; Requirements for an Agreement with a Design Professional.

§410.108.Capital Improvement Proposal Letter; Contents; Proposed Name for the Improvement; Recipients of Letter.

§410.109.Approval, Recommendation, and Action by the Board.

§410.110.Responsibilities of the Capital Improvement Committee with Respect to Fundraising Activities.

§410.111.Programming Phase: Establishment of the Program for the Project; Selection of the Capital Improvement Site.

§410.112.Schematic Design Phase: Preparation, Review, and Approval of Drawings and Specifications.

§410.113.Design Development and Contract Documents Phase.

§410.114.Bidding the Project; Reserving the Right to Reject Any and All Bids; Procedures.

§410.115.Placing Funds in Escrow.

§410.116.Signing the Contract; Requisites of the Contract.

§410.117.Capital Improvements Contract: Conference Before Commencement of Contracted.

§410.118.Completion and Acceptance of the Project.

§410.119.Design and Construction Codes and Standards.

§410.120.Resources Available to the Capital Improvement Committee.

§410.121.References.

§410.122.Distribution.

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 April 25, 2002.

Chairman, Texas MHMR Board

Texas Department of Mental Health and Mental Retardation

Earliest possible date of adoption: June 9, 2002

For further information, please call: (512) 206-4516

Chapter 417. AGENCY AND FACILITY RESPONSIBILITIES

Subchapter A. STANDARD OPERATING PROCEDURES

The Texas Department of Mental Health and Mental Retardation (department) proposes the repeals of existing §§417.1 - 417.6 of Chapter 417, Subchapter A, concerning Standard Operating Procedures. New Chapter 417, Subchapter A, concerning substantially the same matters is contemporaneously proposed in this issue of the Texas Register .

Sections 417.1 - 417.6, describe the department's procedures for the assignment and use of vehicles in a facility's motor pool. The proposal of the repeal of the existing sections and the proposal of the new sections are made according to the department's rule review plan as required by the Texas Government Code, §2001.039.

Cindy Brown, Chief Financial Officer, has determined that for each of the first five years the proposed repeal is in effect, enforcing or administering the sections would not have implications relating to costs or revenues for state or local government because the proposed new rules are not significantly different from the rules proposed for repeal.

Sharon Hunter, Director, Support Services, has determined that for each year of the first five years that the repeal is in effect, the public benefit will be the existence of a concise and relevant body of policy documents. There will be no effect on small or large businesses or on individuals because the rules do not significantly alter the requirement included in the rules proposed for repeal.

No local economic impact is anticipated as a result of repealing the sections because the repealed rules are not significantly different from the requirements included in the proposed new rules, which do not affect local economy.

It is anticipated that the proposed new rules would not have an adverse economic effect on small businesses or microbusinesses because the rules do not significantly alter the requirement 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.

1. GENERAL REQUIREMENTS

25 TAC §§417.1 - 417.3

(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 Department of Mental Health and Mental Retardation or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeal is proposed under the Texas Health and Safety Code, §532.015, which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority, and Texas Government Code, §2171.104, which requires the department to adopt rules implementing the fleet management plan.

The sections affect Texas Government Code, §2171.104, and Texas Government Code, §2001.039.

The repeal is proposed under the Texas Health and Safety Code, §532.015, which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority and the Texas Government Code, §2171.104, which requires the department to adopt rules implementing the fleet management plan.

The sections affect Texas Government Code, §2001.039.

§417.1.Purpose.

§417.2.Application.

§417.3.Definitions.

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 April 29, 2002.

Chairman, Texas MHMR Board

Texas Department of Mental Health and Mental Retardation

Earliest possible date of adoption: June 9, 2002

For further information, please call: (512) 206-4516

2. TRANSPORTATION

25 TAC §417.4

(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 Mental Health and Mental Retardation or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeal is proposed under the Texas Health and Safety Code, §532.015, which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority and the Texas Government Code, §§2171.104, which requires the department to adopt rules implementing the fleet management plan.

The sections affect Texas Government Code, §2171.104, and §2001.039.

§417.4.Assignment and Use of Pooled Vehicles

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 May 3, 2002.

Chairman, Texas MHMR Board

Texas Department of Mental Health and Mental Retardation

Earliest possible date of adoption: June 9, 2002

For further information, please call: (512) 206-4516

3. REFERENCES AND DISTRIBUTION

25 TAC §417.5, §417.6

(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 Department of Mental Health and Mental Retardation or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeal is proposed under the Texas Health and Safety Code, §532.015, which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority and the Texas Government Code, §2171.104, which requires the department to adopt rules implementing the fleet management plan.

The sections affect Texas Government Code, §2001.039.

§417.5.References.

§417.6.Distribution.

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 May 3, 2002.

Chairman, Texas MHMR Board

Texas Department of Mental Health and Mental Retardation

Earliest possible date of adoption: June 9, 2002

For further information, please call: (512) 206-4516

Chapter 417. AGENCY AND FACILITY RESPONSIBILITIES

Subchapter A. STANDARD OPERATING PROCEDURES

25 TAC §§417.1 - 417.4, 417.6, 417.7, 417.9, 417.13 - 417.15, 417.48 - 417.50

The Texas Department of Mental Health and Mental Retardation (TDMHMR) proposes new §§417.1 - 417.4, 417.6, 417.7, 417.9, 417.13 - 417.15, and 417.48 - 417.50 of Chapter 417, Subchapter A, concerning Standard Operating Procedures. Existing §§403.351 - 417.359 of Chapter 403, Subchapter M, concerning Use of Departmental Facilities by Public Employee Organizations; §407.171 of Chapter 407, Subchapter D, concerning Inscription on State Vehicles; and §§417.1 - 417.6 of Chapter 417, Subchapter A, concerning Standard Operating Procedures, which the new sections would replace, are contemporaneously proposed for repeal in this issue of the Texas Register .

The repeal of existing and the proposal of the new sections are made according to the department's rule review plan that is required by Texas Government Code, §2001.039, and would include a new section regarding the procedures and fees that may be charged to family members and guests who stay overnight on campus while visiting consumers.

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 would 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 state vehicles and public employee organizations and members of the public who use or lease state property. There may be minimal economic cost to persons required to comply with the new section regarding fees that may be charged to family members and guests who stay overnight on campus while visiting consumers.

It is anticipated that the proposed new rules would 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 would 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; Texas Government Code, §2001.039, which requires the department to review it rules; Texas Transportation Code, which requires the department to adopt rules to justify it exemption from the state vehicle inscription requirement; and Texas Government Code §2171.104, which requires the department to adopt rules implementing the fleet management Plan.

The sections affect Texas Health and Safety Code, §532.015; Texas Human Resources Code, §32.021; Texas Government Code, §531.021; Texas Government Code, §2001.039; Texas Transportation Code, Chapter 721; Texas Government Code. §2171.104.

§417.1.Purpose.

The purpose of this subchapter is to describe:

(1) the standard operating policies and procedures for state mental health facilities and state mental retardation facilities (SMHMRFs);

(2) requirements and rights of facilities; and

(3) rights protections for individuals receiving services from a facility.

§417.2.Application.

The subchapter applies to state hospitals, state schools, state centers, Central Office, and any entity that may become part of the Texas Department of Mental Health and Mental Retardation (TDMHMR).

§417.3.Compliance with Nondiscrimination Laws.

Services, financial assistance, and other benefits of TDMHMR's programs and facility resources are provided in a manner that does not discriminate of the basis or race, gender, sexual orientation, age, color, national origin, or disability in compliance with applicable state and federal law.

§417.4.Definitions.

The following words and terms when used in this subchapter have the following meanings, unless the context clearly indicates otherwise:

(1) Facility -- A state mental health facility or a state mental retardation facility funded by the TDMHMR.

(2) Individual -- A person receiving services from the Texas Department of Mental Health and Mental Retardation.

(3) Material safety data sheet -- The document provided by a manufacturer that describes a material's or part's chemical properties along with proper use, storage and disposal guidelines.

(4) Non-commerical group -- A group of people associated with an organization (e.g., civic, fraternal, religious, social, service, or community).

(5) Public employee organization -- An organization that represents state employees in legislative, human resource, and related issues.

(6) TDMHMR -- The Texas Department of Mental Health and Mental Retardation.

§417.6.Assignment and Use of Pooled Vehicles.

(a) Except as provided by subsection (b) of this section, state-owned vehicles under the TDMHMR's control are assigned to the facility's motor vehicle pool and made available for use as needed. Some of the vehicles in the motor vehicle pool may be organized in subpools and assigned to divisions or functions (e.g., building services, security, food services) within the facility. The subpooled vehicles are available only to staff in that division or who perform job duties related to that function.

(b) If a state-owned vehicle under the department's control is assigned to an employee, then the facility CEO or designee must document in writing that the assignment and use of the vehicle is critical to TDMHMR's mission. The written documentation must be maintained at the facility, sent to and maintained in the Central Office transportation office, and sent to the General Services Commission, Office of Vehicle Fleet Management.

§417.7.Inscription on State Vehicles.

State vehicles used primarily for transporting individuals receiving services from TDMHMR are not required to have its inscription printed on the vehicle. The purpose served by this exemption is to provide confidentiality, safety, and normalization for individuals receiving services and to reduce the stigma associated with mental illness and mental retardation.

§417.9.Material Safety Data Sheets.

The plant maintenance manager or designee must ensure that a contractor obtains a material safety data sheet before installing any material or replacement part at the facility. If according to the material safety data sheet the material or replacement part contains more than one percent asbestos and there is an alternative material or part available, the contractor is prohibited from installing the material or replacement part.

§417.13.Public Employee Organizations.

(a) Policy. Public employee organizations that represent employees may hold meetings in facilities during non-duty hours by requesting permission in advance.

(b) Requesting permission. A written request for permission to use the facilities for meeting purposes must be submitted to the facility CEO and include:

(1) the name of public employee organization;

(2) the address of principal office of the organization;

(3) the number of employees who are members of the organization;

(4) the names, addresses, and titles of the organization's principal officers;

(5) the schedule of proposed meetings;

(6) the statement that the organization agrees to leave the premises in the same condition as it was delivered and assumes responsibility for any damages to facility resources that may occur; and

(7) a copy of the organization's constitution and by-laws or those of the local chapter of such organization.

(c) Equal treatment. If permission to use TDMHMR facilities is granted to any one public employee organization that represents employees of the TDMHMR, then such permission cannot arbitrarily be withheld from other such organizations. The criteria used by the facility CEO in granting permission to use facility resources must be applied equally to all public employee organizations.

§417.14.Non-Commercial Groups.

(a) Policy. The facility CEO may make facility resources available to the public at large whenever it can do so without compromising the department's primary mission, which is to improve the quality and efficiency of public and private services and supports for Texas with mental illnesses and with mental retardation so that they can increase their opportunities and abilities to lead lives of dignity and independence. Facility resources, which include buildings and grounds, are considered essential to the department's mission, and no other purpose, internal or external, may take precedence.

(b) Requesting permission. An application form, which is in the TDMHMR Contracts Manual , requesting permission to use the premises must be submitted to the facility CEO and include a description of the event, the date and time of the event, and a description of the required premises and equipment.

(c) Granting permission. The facility CEO is the final authority for granting permission to use facility resources.

(d) Criteria for approving requests. The facility CEO may schedule the use of facility resources based on whether:

(1) the organization agrees in writing to abide by all rules and regulations established by the facility CEO regarding the use facility resources and that its meetings in no way interfere with or disrupt the delivery of services to the individuals mental illness or mental retardation;

(2) the event does not conflict with any of the facility's scheduled events, programs, or priority;

(3) the event is consistent with the physical constraints of the resources to be used;

(4) the facility can provide the services for the time period requested; and

(5) the event is in the best interest of the facility and individuals with mental illness and mental retardation.

(e) Facility resource use fee. Any non-commercial group may be charged a facility resource use fee according to the Facility Resource Use Fee Schedule described in Exhibit A in §417.48 of this title (relating to Exhibit), which may be modified periodically to reflect changing costs and may include a minimum fee. If the event directly supports the facility or directly involves or benefits the individuals receiving services (e.g., Volunteer Council, Family Association, or department employee organization), then facility CEO may waive any portion or all of the use fee.

(f) Revoking permission. Permission granted pursuant to such a request continues until revoked by the facility CEO. The public employee organization must immediately notify the facility CEO of any change in the information stated in its written request for permission to use the facilities for meeting purposes.

(g) Advertising. If language clearly reflects that the facility is not sponsoring or promoting the event is included in the copy, the facility's name may be used to advertise the location of the activities. The facility CEO may require that a proof copy be submitted for approval and may require the addition of a disclaimer, e.g., (facility name) is not a promoter or sponsor of this event. No inference of support can be drawn because of the event's location.

(h) Liability. Any non-commercial group or any member thereof using facility resources is liable for any destruction or damage to the resources. The department is not liable for any injury to any person or for the loss of or damage to the property of any person, organization, or group using facility resources.

(i) Required documentation. As described in the TDMHMR Contracts Manual and this subchapter, if the request is for an athletic or sporting event, a water-related activity, overnight use, or an event that is open to the public at large or attendance is expected to exceed 25 or more people, then the requestor by no later than 72 hours prior to the event must:

(1) execute a license and use agreement;

(2) execute a waiver and indemnity agreement; and

(3) obtain at least $1 million combined limit general liability insurance, in the facility's name, with the Texas Department of Mental Health and Mental Retarded and/or its successors listed as an additional insured; and

(4) submit the use and indemnity agreements and proof of insurance to the facility CEO.

§417.15.Family Members and Guests of an Individual Receiving Services.

If a facility has on-site overnight accommodations that are made available to family members or guests of an individuals receiving services, a facility resource us fee may be charged as described in the Facility Resource Use Fee Schedule in §417.48, Exhibit A of this title (relating to Exhibits). If the family member or guest is unable to pay the entire use fee, the facility CEO may waive any portion or all of the fee based on the family member's or guest's ability to pay.

§417.48.Exhibit.

Reference is made to Exhibit A - Facility Resource Use Fee Schedule, Asset Management, P.O. Box 12668, Austin TX 78711-2668.

§417.49.Reference.

Reference is made to the TDMHMR Contracts Manual .

§417.50.Distribution.

(a) The subchapter is distributed to the board; commissioner; medical director; deputy commissioners for community programs and finance and administration; directors, State Mental Health and Mental Retardation Facilities; Central Office program staff; and facility CEOs.

(b) The facility CEO is responsible for 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 April 29, 2002.

Chairman, Texas MHMR Board

Texas Department of Mental Health and Mental Retardation

Earliest possible date of adoption: June 9, 2002

For further information, please call: (512) 206-4516

Subchapter D. PERMANENT IMPROVEMENTS DONATED BY INDIVIDUALS OR COMMUNITY GROUPS

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 community 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 donate a permanent improvement to a facility.

The key differences between the new sections and the sections proposed for repeal would be a new subchapter title (i.e., Permanent Improvements Donated by Individuals or Community Groups) to avoid confusion between capital improvement projects and capital construction projects, the required use of a new form (i.e., TDMHMR Proposed Real Property Change Form) to provide administrative and management staff with the opportunity to review positive and negative implications associated with implementing the permanent improvement, and the added requirement that an endowment fund be established and maintained by the volunteer services council to pay the operating expenses for a specific 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 may be some economic cost to persons required to comply with the proposed rules because of the added requirement that the volunteer services council establish and maintain an endowment fund to pay any operating expenses that may be associated with some permanent improvements.

It is anticipated that the proposed new rules would 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 would not have an adverse economic effect on small businesses or micro businesses 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 a donor proposes to donate a 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 surety bond whereby the issuer acts as guarantor for the performance of, or for the payment of labor or materials obtained by, the permanent improvement contractor.

(4) Building system--Components of existing buildings, including roofing; mechanical, plumbing, and electrical systems that are integral to the durability and habitability of a building (e.g., air conditioning units, water or wastewater distribution lines, electrical wiring located in walls or underground, and subflooring or foundation work).

(5) 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.

(6) Central Office (CO)--The Texas Department of Mental Health and Mental Retardation, located at 909 West 45th Street, Austin.

(7) 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.

(8) Commissioner--The commissioner of the Texas Department of Mental Health and Mental Retardation.

(9) Community group--A volunteer services council that is affiliated with TDMHMR or a group of people associated with an organization (e.g. civic, fraternal, corporate, religious, social, service, community, or educational).

(10) 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.

(11) Contractor--The business entity that has been awarded the contract for implementing a specific permanent improvement.

(12) 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.

(13) Donor--A person or community group who wants to donate a permanent improvement.

(14) Director, facility community relations--The staff person who is responsible for coordinating the community relations functions, volunteer programs, and fundraising at a facility.

(15) Endowment fund--A permanent, restricted fund established and maintained by the volunteer services council to fund, by generating interest income from the principal fund, the ongoing operating expenses for a specific permanent improvement.

(16) 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).

(17) Facility chief executive officer (CEO)--The chief administrator of a facility.

(18) 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's construction.

(19) Maintenance and Construction--The division at Central Office whose staff are responsible for the administering TDMHMR's Capital Construction Program.

(20) Maintenance and Construction (MC) project manager--A Central Office Maintenance and Construction staff person who acts as TDMHMR's representative for the duration of construction of a permanent improvement and as an advisor to assigned facilities and the permanent improvement committee in matters relating to an improvement.

(21) Major project--A proposed permanent improvement that is estimated to cost $25,000 or more and/or requires $10,000 or more in additional annual operating expenses.

(22) Minor project--A proposed improvement that is estimated to cost under $25,000 and requires less than $10,000 in additional annual operating expenses.

(23) 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.) or projects consisting of landscaping, equipment replacement, or building system replacement.

(24) 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.

(25) Plant maintenance manager--The staff person who is responsible for managing plant maintenance activities at a state hospital, state school, or state center and serving as a non voting member of the permanent improvement committee.

(26) SMHMRFs--State Mental Health and Mental Retardation Facilities.

(27) TDMHMR--The Texas Department of Mental Health and Mental Retardation.

(28) 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.

(29) 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) Except as provided by subsection (b) of this section, if a donor proposes to construct an 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).

(b) If a donor proposes to make a donation of or for landscaping, equipment replacement, or building system replacement (e.g., carpet, roof, plumbing, or heating or air conditioning unit), the proposal must be reviewed according to §417.155(c) of this title. Depending on the complexity or special circumstances associated with the proposal the director, Maintenance and Construction, may determine if a more specific review is required.

§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 Texas Department of Mental Health and Mental Retardation (TDMHMR) Permanent Improvement Program Manual.

(b) Concept description. A letter must be submitted by the director, facility community relations and facility chief executive officer (CEO) describing the concept of the proposed improvement. The concept is reviewed and approved by the appropriate director, State Mental Health and Mental Retardation Facilities (SMHMRF), and the commissioner before the preliminary proposal can be submitted.

(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 benefits associated with the improvement and to provide the donor with feedback.

(1) If the proposed improvement is limited to landscaping, equipment replacement, or building system replacement, the facility CEO and CO staff may approve the proposal or reject the proposal if it is determined that the proposed improvement would not benefit the facility.

(2) The facility CEO advises the VSC chair in writing of the approval or determination, including any suggestions from the facility CEO or CO staff for improving the preliminary proposal, so that the proposed improvement would benefit the facility.

(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; director, facility community relations; and if available the design professional to establish the improvement's function, scope, name, budget, and the possible need for an endowment fund.

(1) Name. A proposed name for the completed improvement may be included in the formal proposal.

(2) Approval. 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 (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 to the commissioner for approval.

(1) Permanent improvement committee. The executive committee of the VSC board of directors appoints a 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, the schematic design for each improvement must be prepared by a design professional. The design professional must solicit input from the permanent improvement committee to 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. The fundraising activities include raising funds for the improvement's design and construction phases and if required the first year's operating expenses. Some of the funds that are raised may be used to prepare a fundraising information packet, which can be a brochure or portfolio and may include a project narrative, drawings, budget information, pledge card, or information on how a donor may participate in implementing the improvement.

(4) Endowment fund. If a facility is determines the operating expenses for a new or expanded improvement cannot be funded within its current budget allocation, the VSC must establish an endowment fund to cover such expenses. In this situation, before construction begins the VSC must raise the equivalent of 25 percent of the cost of the total improvement and place it in an permanent endowment fund. The endowment fund is restricted to funding the project's ongoing operating expenses beginning the second year after the project has been completed and turned over to the state. The annual interest income from the endowment fund should be sufficient to pay the operating expenses for the improvement in perpetuity.

(f) Design development. Except as provided by paragraph (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) The design development documents are submitted by the committee to the director, Maintenance and Construction, for approval.

(2) Based upon the advice of the design professional, the committee may request in writing 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 and, if required, the first year's operating expenses 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 chair or designee notifies the commissioner in writing that the committee is ready to convey the improvement to the state and, if an endowment fund is required, the VSC chair or designee must submit written verification that the funds exist. 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 for 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 April 25, 2002.

Chairman, Texas MHMR Board

Texas Department of Mental Health and Mental Retardation

Earliest possible date of adoption: June 9, 2002

For further information, please call: (512) 206-4516