§12.223.Can a day care home provider that participates in the CACFP actively take part in any sponsor's day-to-day operations, either full- or part-time?

§12.224.Can a day care home provider be a board member of a sponsoring organization?

Yes. A day care home provider can be a board member if it is not engaged in day-to-day operations of the sponsoring organization.

§12.225.Can a day care home provider that has been found guilty of committing fraud in the CACFP still participate in the CACFP?

No. If a day care home provider has been found guilty, even if adjudication is deferred, the day care home's sponsoring organization must terminate the day care home's participation according to Division 19 of this subchapter (relating to Denials and Terminations).

§12.226.Is a day care home required to attend program-related training to qualify to participate in the CACFP?

Yes. Each day care home must participate in sponsor-provided program-related training DHS deems reasonable and necessary.

§12.227.Does DHS limit the number of day care homes that a new contractor may sponsor?

Yes. DHS uses the contractor's management plan to determine the number of day care homes that a new sponsoring organization can sponsor.

§12.228.If DHS limits the number of day care homes that a newly approved contractor can sponsor, how can the contractor gain additional homes?

The contractor must submit a written request to sponsor additional day care homes. DHS approves sponsorship of additional day care homes only if the contractor provides evidence of administrative and financial capability.

§12.229.Does DHS limit the number of day care homes that a contractor currently participating in the CACFP may sponsor?

DHS may limit the number of day care homes a participating contractor may sponsor in the CACFP if that organization's staffing pattern and management plan indicate insufficient ability to administer more day care homes. DHS may also limit the number of day care homes an organization can sponsor according to §12.455 and §12.457 of this chapter (relating to What happens if DHS determines during the follow-up review that the day care home sponsor has not corrected all instances of program noncompliance identified in the initial review? and What happens if, during a review or an audit, DHS cites a day care home sponsor for deficiencies in administrative or financial capabilities because the sponsor has too many day care homes?).

§12.230.Does DHS approve additional day care homes for contractors already participating in the CACFP?

If DHS has limited the number of day care homes, any additional day care homes over the limit must be approved. DHS approves additional day care homes if a contractor demonstrates that it is capable of administering more day care homes.

§12.231.How does DHS notify a contractor that its total number of day care homes has been limited?

DHS notifies the contractor in writing of all adjustments to the number of day care homes that may be sponsored.

§12.232.On what does DHS base its adjustment?

DHS bases its adjustment on the contractor's administrative and financial capability.

§12.233.In addition to the provisions of 7 CFR §226.13 and §226.18, what other guidelines must a contractor that sponsors day care homes follow?

A contractor that sponsors day care homes must not allow any officer, agent, consultant, contractor, or any other employee to:

(1) solicit donations or fees from providers;

(2) require providers to engage in any kind of business on the sponsoring organization's behalf; or

(3) accept gratuities, favors, or anything of monetary value from providers.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305128

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

11. START-UP AND EXPANSION PAYMENTS

40 TAC §§12.261 - 12.269

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.261.What are start-up and expansion payments?

Start-up and expansion payments are defined in 7 CFR §226.2.

(1) Start-up payments consist of financial assistance made available to a sponsoring organization for its administrative expenses associated with developing or expanding a food service program in day care homes and initiating successful CACFP operations. Start-up payments may include administrative expenses associated with outreach and recruitment of unlicensed family or group day care homes and the allowable licensing-related expenses of such homes.

(2) Expansion payments consist of financial assistance made available to a sponsoring organization for its administrative expenses associated with expanding a food service program to day care homes located in low-income or rural areas. Expansion payments may include administrative expenses associated with outreach and recruitment of unlicensed family or group day care homes and the allowable licensing-related expenses of such homes.

§12.262.Which contractors are eligible to request start-up and expansion payments?

(a) Start-up payments are available to contractors that sponsor or want to sponsor day care homes.

(b) Expansion payments are available only to contractors that have sponsored day care homes for at least one year at the time of application.

§12.263.How does a contractor apply to receive start-up and expansion payments?

A contractor must contact DHS to request an application for start-up and expansion payments.

§12.264.How does DHS issue start-up payments to contractors that sponsor or want to sponsor day care homes?

DHS issues start-up payments according to 7 CFR §§226.2, 226.6, 226.7, and 226.12, and written guidance from USDA.

§12.265.How does DHS issue expansion payments to day care home sponsors?

DHS issues expansion payments to day care home sponsors according to 7 CFR §§226.2, 226.6, 226.7, and 226.12.

§12.266.How does DHS determine the amount of expansion payments issued to a day care home sponsor?

DHS uses the formula "D x R x 2," in which:

(1) "D" is the number of day care homes the sponsoring organization intends to recruit (up to 50);

(2) "R" is the monthly rate per home for one to 50 homes in effect at the time of the application for expansion payments; and

(3) "2" is two months.

§12.267.How must a day care home sponsor use expansion payments?

A sponsor of day care homes must use expansion payments according to 7 CFR §226.2 and §226.12 and written guidance from USDA.

§12.268.How must a day care home sponsor use start-up payments?

A day care home sponsor must use start-up payments to develop or expand a food service program in day care homes according to 7 CFR §226.2 and §226.12 and written guidance from USDA.

§12.269.Can start-up or expansion payments awarded to day care home sponsors be used to recruit day care homes that are already participating with another DHS-approved sponsoring organization?

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305129

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

12. ADVANCE PAYMENTS

40 TAC §§12.281 - 12.290

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.281.Does DHS issue and monitor advance payments to contractors according to a specific procedure?

Yes. DHS issues and monitors advance payments to eligible contractors according to 7 CFR §§226.2, 226.6, 226.7, 226.10, and 226.16.

§12.282.How must a contractor account for advance funds?

A contractor must account for advance funds according to 7 CFR §§226.2, 226.6, 226.7, 226.10, and 226.16.

§12.283.How does DHS issue advance payments to a contractor that has a claim history?

DHS issues monthly advance payments based on the contractor's most recent claim received and processed.

§12.284.How does DHS issue advance payments to a contractor that does not have a claim history?

DHS issues an advance payment based on the amount of reimbursement the contractor is projected to earn during the month for which the advance is to be issued.

§12.285.How does DHS estimate advance payment amounts?

DHS estimates advance payment amounts based on one or both of the following:

(1) the number of day care homes participating; and/or

(2) the number of participants enrolled and served approved meals.

§12.286.Does DHS issue retroactive advances?

§12.287.What happens if USDA does not provide sufficient funds for DHS to pay both advance payments and claims for reimbursement in full?

DHS pays claims for reimbursement only.

§12.288.How does DHS recoup advance payments?

DHS recoups advance payments from the reimbursement claim for the month for which the advance is issued.

§12.289.What happens if the advance payment exceeds the reimbursement earned in the month for which the advance is issued?

DHS deducts the excess amount from subsequent advances issued or claims paid.

§12.290.What happens if a contractor who sponsors day care homes does not comply with program requirements?

DHS denies or suspends advance payments to that contractor according to Division 18 of this subchapter (relating to Sanctions, Penalties, and Fiscal Action).

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305130

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

13. COMMODITIES AND CASH-IN-LIEU ASSISTANCE

40 TAC §§12.311 - 12.317

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.311.Does DHS provide commodity assistance to contractors?

DHS provides USDA-donated foods or cash-in-lieu of commodities according to 7 CFR §§226.5, 226.6, 226.15, and 226.20.

§12.312.How does DHS determine whether to issue commodities or cash-in-lieu of commodities?

DHS conducts an annual survey to determine each contractor's preference according to 7 CFR §226.6. If the majority chooses cash-in-lieu of commodities, then DHS issues cash-in-lieu of commodities to all eligible contractors.

§12.313.If a day care home sponsor chooses to distribute bonus commodities to its day care homes, how does it determine the number of commodities to distribute to each day care home?

A day care home sponsor must distribute the bonus commodities based on the number of children the day care home keeps.

§12.314.Who covers the costs of distributing bonus commodities?

A day care home sponsor that chooses to distribute bonus commodities can pass on to the day care homes any costs it may incur for distributing bonus commodities.

§12.315.Can a sponsoring organization include administrative costs associated with the distribution of bonus commodities in its CACFP costs?

§12.316.What does DHS require of a day care home sponsoring organization before that organization can submit charges to its day care homes?

Day care home sponsoring organizations must:

(1) submit a detailed bonus cost allocation plan to DHS that DHS must approve; and

(2) obtain the day care home's written consent.

§12.317.Are facilities or centers required to receive bonus commodities?

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305131

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

14. REIMBURSEMENT

40 TAC §§12.331 - 12.363

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.331.Under what authority does DHS reimburse a contractor for its participation in the CACFP?

DHS reimburses a contractor according to 7 CFR §§226.2, 226.4, 226.6, 226.7, 226.9-226.19a, and 226.23; 7 CFR Part 3015; and Section 17(a)(2)(B) of the National School Lunch Act (42 U.S.C. §1766), as amended.

§12.332.Under what authority must contractors reimburse facilities?

Contractors must reimburse facilities according to 7 CFR §§226.2, 226.4, 226.6, 226.7, 226.9-226.19a, and 226.23; 7 CFR Part 3015; and Section 17(a)(2)(B) of the National School Lunch Act (42 U.S.C. §1766), as amended.

§12.333.How does DHS assign reimbursement rates for contractors?

DHS assigns reimbursement rates for contractors according to the option in 7 CFR §226.9(b)(3).

§12.334.What options does DHS use to reimburse contractors?

DHS reimburses contractors according to the options in 7 CFR §226.9(c)(1). DHS does not use the option described in 7 CFR §226.9(d).

§12.335.How does DHS compute reimbursement for approved child care centers, outside-school-hours care centers, adult day care centers, and day care homes?

DHS computes reimbursement according to 7 CFR §226.13 and the option in 7 CFR §226.11(c)(3).

§12.336.What are Title III benefits?

Title III benefits include all benefits provided under Part C of the Older Americans Act (OAA), including commodities (or cash-in-lieu of commodities) authorized by the OAA and provided by the U.S. Department of Health and Human Services.

§12.337.Can independent adult day care centers and contractors that sponsor adult day care centers claim reimbursement for meals supported by Title III of the Older Americans Act?

No. These adult day care centers and contractors must ensure that the meals for which they claim reimbursement are not supported by Title III of the Older Americans Act.

§12.338.If a contractor uses a food service management company to prepare the meals served at the adult day care center, who is responsible for ensuring that neither Title III funds nor commodities were used in the meals?

The contractor must ensure that neither Title III funds nor commodities are used in the meals prepared for use in the CACFP.

§12.339.How many snacks can a CACFP At Risk Afterschool Snack program contractor claim for reimbursement?

A CACFP At Risk Afterschool Snack program contractor can submit a claim for reimbursement for one snack per child per day.

§12.340.What are the requirements for submitting a claim for reimbursement for a snack?

The snack must meet CACFP snack requirements and be served to eligible program participants.

§12.341.What rate does DHS use to reimburse contractors who operate the CACFP At Risk Afterschool Snack program?

DHS reimburses CACFP At Risk Afterschool Snack contractors for eligible snacks at the free rate of reimbursement.

§12.342.Can a contractor be reimbursed for after school snacks served to participants in an approved At Risk Afterschool program in addition to the meals provided in traditional child care?

No. A contractor cannot claim reimbursement for At Risk Afterschool program snacks served to participants who have already received the maximum number of reimbursable meals under the CACFP.

§12.343.What is the maximum number of reimbursable meals under the CACFP?

A participating contractor is eligible to be reimbursed for either:

(1) two meals and one snack per child per day; or

(2) two snacks and one meal per child per day.

§12.344.Are there any exceptions?

Emergency shelters participating in the CACFP may claim up to three meals per child in residence at the shelter per day.

§12.345.How many meals can a contractor that sponsors or operates emergency shelters for homeless children include in a claim for reimbursement?

A contractor may claim either:

(1) three meals (breakfast, lunch, and supper) per child per day;

(2) two meals (breakfast, lunch, or supper) and one snack per child per day; or

(3) two snacks and one meal (breakfast, lunch, or supper) per child per day.

§12.346.Are there any meals for which emergency shelters for homeless children contractors cannot claim reimbursement?

Emergency shelters for homeless children contractors cannot claim reimbursement for meals served:

(1) in private family quarters, except meals served to infants from birth to age 11 months; or

(2) to nonresidential children.

§12.347.Must a contractor claim reimbursement within a specific time period?

A contractor must ensure that claims for reimbursement are postmarked or received by DHS no later than 60 days after the end of the claim month.

§12.348.Who is responsible for the accuracy of the information submitted on the contractor's claim for reimbursement?

DHS holds the persons designated on the contractor's DHS Certificate of Authority form accountable for the accuracy of the information submitted on the claim for reimbursement.

§12.349.Will DHS pay a claim for reimbursement if it is received or postmarked later than 60 days after the end of the claim month?

DHS will not pay a claim that is received or postmarked after the deadline unless USDA finds that good cause beyond the contractor's control delayed the submission of the claim.

§12.350.How does DHS process a claim received later than 60 days after the end of the claim month(s)?

DHS notifies the contractor that it may submit a written request for payment demonstrating that good cause beyond the contractor's control caused the claim to be received by DHS or postmarked after the deadline.

§12.351.What happens if DHS finds that good cause did not exist?

DHS notifies the contractor that its request is not approved and will not be forwarded to USDA for consideration.

§12.352.What happens if DHS finds that good cause beyond the contractor's control existed?

DHS forwards the request to USDA with a recommendation to pay the claim.

§12.353.What happens if USDA finds that good cause existed?

§12.354.What happens if USDA finds that good cause did not exist?

DHS may grant an exception and pay a late claim as long as the contractor:

(2) has not been granted an exception in the 36 months preceding the month for which a request for an exception is submitted.

§12.355.Does a contractor have the option not to submit a request for payment of a late claim based on good cause?

§12.356.If a contractor chooses not to submit a request for payment of a late claim based on good cause, can a contractor still be reimbursed for that claim?

DHS may grant an exception and pay a late claim as long as the contractor:

(2) has not been granted an exception in the 36 months preceding the month for which a request for an exception is submitted.

§12.357.What guidelines must a contractor use when serving second meals?

A contractor must serve second meals according to 7 CFR §226.20(j).

§12.358.How must a contractor claim reimbursement for second meals?

A contractor must claim reimbursement for second meals according to 7 CFR §226.20(j).

§12.359.Can a contractor that serves meals family style claim reimbursement for second meals?

§12.360.Can a day care home claim CACFP reimbursement for meals served to another day care home provider's own children when both providers participate in the CACFP?

§12.361.Can the day care home provider's own child be considered a nonresidential child for the purpose of claiming reimbursement for a meal service at the day care home of another provider?

The provider's own child can be considered a nonresidential child by another day care home provider for the purpose of claiming reimbursement only if the following conditions are met:

(1) The child is enrolled for child care at the substitute facility.

(2) The provider for whom substitute care is being provided does not claim reimbursement for any meals served during the period of substitute care.

§12.362.What age group of children must an emergency shelter or homeless site serve in order to be eligible to participate as a contractor in the CACFP?

Emergency shelters must provide meal benefits to residential children age 12 and under.

§12.363.Are there any exceptions?

Emergency shelters must also provide meal benefits to children of migrant workers age 15 or younger and children with disabilities regardless of age.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305132

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

15. OVERPAYMENTS

40 TAC §§12.381 - 12.383

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.381.How does DHS manage overpayment of claims for reimbursement, advance payments, start-up, and expansion fund payments?

DHS manages overpayment according to 7 CFR §§226.6-226.8, 226.10, and 226.12-226.14; and §69.209 of this title (relating to Recoupment of Improper Payments).

§12.382.What happens to program funds that a day care home sponsor recovers from a day care home?

The day care home sponsor must return the funds to DHS.

§12.383.Can a day care home sponsor use CACFP funds to recruit day care homes?

No. A day care home sponsor must not use CACFP funds to recruit day care homes before the June 1st preceding the CACFP program year for which the new agreement will be effective, unless the day care home is not already participating in the program with an approved sponsoring organization.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305133

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

16. PROGRAM REVIEWS, MONITORING, AND MANAGEMENT EVALUATIONS

40 TAC §§12.391 - 12.406

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.391.Is a contractor required to monitor its own program operations?

Yes. A contractor must monitor its own program operations according to 7 CFR §226.15 and §226.16, except that DHS does not use the averaging option described in 7 CFR §226.16(d)(4)(iii).

§12.392.Does DHS conduct periodic visits to CACFP contractors?

Yes. DHS conducts periodic visits to private nonprofit and private for-profit contractors that DHS determines through the program review process and technical assistance sessions to have demonstrated potential for noncompliance with CACFP requirements.

§12.393.How does DHS determine which contractors to visit?

DHS determines through the program review process and technical assistance sessions which contractors have demonstrated a potential to not comply with program requirements.

§12.394.Does DHS require sponsors of day care homes to verify participation of the children in their day care homes?

Yes. Every federal fiscal year, DHS randomly selects at least 10% of the day care homes of each sponsor participating in the CACFP to verify the participation of the children claimed.

§12.395.How must a day care home sponsor verify the participation of the children claimed?

A day care home sponsor must verify that the children for whom meals are being claimed for reimbursement are enrolled for and receiving child care services and are participating in the program.

§12.396.How must a day care home sponsor verify a child's enrollment in a day care home?

For each provider selected, the sponsor must contact the family of each child reported as enrolled for child care and participating in the program, excluding the day care home provider, during a test period established by DHS.

§12.397.Can a contractor verify the participation of children in day care homes even if the day care home is neither randomly selected for verification by DHS nor requires additional verification of participation after being randomly selected by DHS?

Yes. A contractor may verify the participation of children in day care homes regardless of whether its day care homes were randomly selected by DHS.

§12.398.How does a day care home sponsor conduct reviews of day care homes?

A day care home sponsor must conduct reviews according to 7 CFR §226.16.

§12.399.How does a center sponsor conduct reviews of its sponsored facilities?

A center sponsor must conduct reviews according to 7 CFR §226.16.

§12.400.What type of monitoring reviews must a day care home sponsor conduct?

A day care home sponsor must conduct a minimum of one scheduled (announced in advance) and two unscheduled (unannounced) monitoring reviews of each of their day care homes each 12 months.

§12.401.Must the day care home sponsor observe a meal service during each monitoring review?

Yes. For new day care homes, the home's first four-week review and either of the next two reviews must include the observation of the breakfast, lunch, or supper service. For day care homes in their second or later year of participation, the sponsor is required to observe at least two main meals (breakfast, lunch, or supper). Only one review per year per day care home may include the observation of a snack (supplement) rather than a main meal.

§12.402.What happens if the day care home sponsor cannot confirm program participation?

The day care home sponsor must make an unannounced follow-up review within two weeks of the initial review.

§12.403.When must a day care home sponsor conduct monitoring reviews of day care homes that participate on weekends?

A day care home sponsor that participates on weekends must conduct at least one of its three monitoring reviews on Saturday or Sunday.

§12.404.How does a contractor that sponsors the participation of child and adult care centers conduct monitoring reviews of its sponsored facilities?

(a) A contractor that sponsors child and adult care centers must conduct reviews according to 7 CFR §226.16. See also §12.405 of this chapter (relating to Is a contractor that uses a food service management company (FSMC) contract required to monitor contracts with the FSMC?).

(b) A center sponsor must also observe a meal service during each of the reviews.

§12.405.Is a contractor that uses a food service management company (FSMC) contract required to monitor contracts with the FSMC?

Yes. Each contractor that sponsors the participation of child and adult care centers must:

(1) conduct a pre-approval visit to each food preparation site and the administrative offices of the FSMC before awarding a contract for food service;

(2) review the FSMC, including each food preparation site and administrative offices, at least once per contract period;

(3) review the FSMC meal preparation and delivery system, including sanitation and food preparation practices, transportation of food, record keeping, and compliance with state and local health requirements;

(4) maintain written verification of monitoring visits, including the date of the visit and all findings; and

(5) require the FSMC to take the appropriate action to correct all deficiencies discovered during the review within a reasonable amount of time.

§12.406.What happens if the health and well being of a program participant is at risk because of program deficiencies identified during an FSMC review?

The contractor must immediately terminate the FSMC contract for cause.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305134

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

17. AUDITS

40 TAC §§12.421 - 12.425

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.421.Are contractors and sponsored facilities that participate in the CACFP subject to audit?

(1) Contractors and sponsored facilities are subject to audit requirements according to 7 CFR §226.7 and §226.8; 7 CFR Parts 3015 and 3052; and §69.208 of this title (relating to Methods for Auditing Contracts).

(2) A contractor participating in the CACFP as a private nonprofit organization or a public entity is subject to the single audit requirements according to 7 CFR §226.8 and 7 CFR Part 3052.

§12.422.Are certain contractors exempt from the single audit requirements?

Yes. A contractor that is a military installation or a private, for-profit organization is not subject to the single audit requirements. DHS conducts the audits of contractors that are private, for-profit organizations.

§12.423.When is an audit considered acceptable?

The contractor has not fulfilled the audit requirement until DHS determines that the audit is acceptable according to the requirements of the Single Audit Act.

§12.424.How is a contractor informed of its obligation to comply with the single audit requirements?

(a) DHS notifies the contractor in writing, upon approval of its application to participate in the CACFP, that it is subject to the single audit requirements in 7 CFR Part 3052. The notification includes the date by which the contractor must submit an acceptable audit to DHS.

(b) DHS also provides the contractor with at least two written notices reminding the contractor when its audit must be submitted to DHS.

(1) DHS issues one notice by regular mail no later than six months after the end of the contractor's fiscal year for which the audit is due.

(2) DHS issues a subsequent notice by certified and regular mail eight months after the end of the contractor's fiscal year for which the audit is due. This notice also informs the contractor that failure to submit the audit to DHS by the required due date will result in adverse action, up to and including placement into the Serious Deficiency Process, termination of its agreement, and placement of the organization and each responsible principal on the National Disqualified List.

§12.425.Does DHS reimburse a contractor for the cost of obtaining a single audit?

DHS reimburses contractors for eligible audit expenses according to 7 CFR §226.8(b).

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305135

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

18. SANCTIONS, PENALTIES, AND FISCAL ACTION

40 TAC §12.441 - 12.472

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.441.Does DHS investigate and resolve program deficiencies, program irregularities, and evidence of violations of criminal law or civil fraud statutes?

Yes. DHS investigates and resolves program deficiencies, program irregularities, and evidence of violations of criminal law or civil fraud statutes according to 7 CFR §§226.6, 226.8, 226.10, and 226.14.

§12.442.What does DHS do if a contractor fails to comply with the CACFP requirements in 7 CFR Part 226 and this subchapter?

DHS imposes sanctions against any contractor according to 7 CFR §226.6 and Division 19 of this subchapter (relating to Denials and Terminations), up to and including:

(1) placement into the Serious Deficiency Process;

(2) termination;

(3) debarment; and

(4) placement on the National Disqualified List.

§12.443.What does DHS do if DHS learns that a contractor has submitted false information on its program application?

DHS takes action according to 7 CFR §226.6 and Division 19 of this subchapter (relating to Denials and Terminations), up to and including:

(1) placement into the Serious Deficiency Process;

(2) denial or termination;

(3) debarment; and

(4) placement of the institution and all responsible principals on the National Disqualified List.

§12.444.What happens to eligible day care home providers or centers when their sponsoring organization is disqualified?

DHS notifies that contractor's eligible providers or centers that they may transfer to another approved sponsor. Centers may also apply directly to DHS as an independent center.

§12.445.What happens if a contractor fails to attend mandatory DHS training?

DHS takes action according to 7 CFR §226.6 and Division 19 of this subchapter (relating to Denials and Terminations), up to and including:

(1) placement into the Serious Deficiency Process;

(2) termination;

(3) debarment; and

(4) placement of the institution and all responsible principals on the National Disqualified List.

§12.446.What happens if a day care home sponsor fails to properly monitor or train providers when program violations related to monitoring or training of providers identified during an administrative review exceed a tolerance level of one provider or 10% of the providers sampled, whichever amount is greater?

(1) places the day care home sponsor in the Serious Deficiency Process;

(2) denies administrative reimbursements for the test month of the review for any provider who was not monitored or trained according to program requirements;

(3) requires the contractor to submit a plan describing how it will correct the program noncompliance; and

(4) conducts a follow-up review within 90 days after notifying the contractor of the review findings to determine if the sponsor is complying with program requirements.

§12.447.What happens if DHS determines during the follow-up review that the day care home sponsor has not corrected all program noncompliances identified in the initial review?

(a) If DHS determines during the follow-up review that the day care home sponsor has not corrected all instances of program noncompliance identified in the initial review, DHS:

(1) denies administrative reimbursements beginning the months following the month of the initial review through the month of the follow-up review for any provider who was not monitored or trained according to program requirements;

(2) establishes a cap on the number of day care homes the contractor may sponsor, not to exceed the number of day care homes sponsored at the time of review;

(3) rescinds or denies approval for advance payments; and

(4) continues the Serious Deficiency Process by notifying the sponsor that if the contractor fails to demonstrate at the second follow-up review that all serious deficiencies DHS identifies have been or will be corrected, DHS proposes to:

(A) terminate its agreement;

(B) disqualify the organization, responsible principals, and responsible individuals;

(D) debar individuals responsible for the deficiencies.

(b) DHS conducts a second follow-up review no later than 45 days after notifying the contractor of the findings of the initial follow-up review to determine if the sponsor complies with requirements for paying providers according to program requirements.

§12.448.What happens after the second follow-up review if the day care home sponsor fails to demonstrate that all serious deficiencies identified by DHS have been or will be corrected?

DHS notifies the contractor that as a result of failure to correct all instances of noncompliance with the requirements for monitoring and training providers:

(1) the contractor's agreement is terminated, in whole or in part, according to 7 CFR §226.6 and Division 19 of this subchapter (relating to Denials and Terminations);

(2) the contractor, responsible principals, and responsible individuals have been placed on the National Disqualified List;

(3) the contractor's eligible providers have been released to transfer to another approved sponsor; and

(4) individuals responsible for the deficiencies are debarred.

§12.449.What happens if a day care home sponsor fails to ensure that a claim is submitted only for eligible meals served to eligible children?

If DHS determines during an initial review of the sponsor for the contract year that the sponsor has failed to ensure that claims are submitted only for eligible meals served to eligible children, DHS:

(1) denies administrative reimbursements for any day care home provider that does not have eligibility or enrollment forms containing required information; and

(2) requires the contractor to submit:

(A) an amended claim for reimbursement to remove all ineligible meals for the test month; and

(B) a plan describing how the program noncompliance will be corrected.

§12.450.What happens if DHS determines during the test month of the initial review that 10% or more of the meals sampled and claimed for reimbursement fail to meet program requirements?

(1) places the day care home sponsor in the Serious Deficiency Process; and

(2) conducts a follow-up review not later than 90 days after notifying the contractor of the review findings to determine if the sponsor is in compliance with requirements for ensuring claims are submitted only for eligible meals served to eligible children.

§12.451.What happens if DHS determines during the follow-up review that 10% or more of the meals sampled and claimed for reimbursement for the test month fail to meet program requirements?

(a) DHS:

(1) denies administrative reimbursements for the months following the month of the initial review through the month of the follow-up review for any day care home that does not have eligibility or enrollment forms containing required information;

(2) establishes a cap on the number of day care homes the contractor may sponsor, not to exceed the number of day care homes sponsored at the time of the review;

(3) rescinds or denies approval for advance payments; and

(4) continues in the Serious Deficiency Process by notifying the sponsor that if the contractor fails to demonstrate at the second follow-up review that all serious deficiencies DHS identified have been or will be corrected, DHS proposes to:

(A) terminate its agreement;

(B) disqualify the organization, responsible principals, and responsible individuals;

(D) debar individuals responsible for the deficiencies.

(b) If the contractor fails to demonstrate at the second follow-up review that all serious deficiencies identified by DHS have been or will be corrected, DHS conducts a second follow-up review no later than 45 days after notifying the contractor of the findings of the initial follow-up review to determine if the sponsor complies with requirements ensuring that claims are submitted only for eligible meals served to eligible children.

§12.452.What happens even if less than 10% of all meals claimed for the test month of the follow-up are ineligible?

The sponsor:

(1) cannot claim reimbursement for any ineligible meals for the test month;

(2) cannot receive administrative reimbursement for any day care home that does not have eligibility or enrollment forms containing the required information; and

(3) must submit a plan describing how the program noncompliance will be corrected.

§12.453.What happens during the second follow-up review if the day care home sponsor fails to demonstrate that all serious deficiencies identified by DHS have been or will be corrected?

DHS notifies the contractor that as a result of failure to correct all instances of noncompliance:

(1) the contractor's agreement is terminated, in whole or in part, according to 7 CFR §226.6 and Division 19 of this subchapter (relating to Denials and Terminations);

(2) the contractor, responsible principals, and responsible individuals have been placed on a National Disqualified List;

(3) the contractor's eligible providers have been released to transfer to another approved sponsor; and

(4) all individuals responsible for the deficiencies are debarred.

§12.454.What happens if a day care home sponsor fails to disburse program funds to providers according to program requirements when program violations related to the disbursement of program funds to providers identified during an administrative review exceed a tolerance level of one provider or 10% of the providers sampled, whichever amount is greater?

(1) places the day care home sponsor in the Serious Deficiency Process;

(2) requires the contractor to submit an amended claim to remove all providers that have not been issued program funds according to program requirements from its reimbursement claim for the test month;

(3) requires the contractor to submit a plan describing how the program noncompliance will be corrected; and

(4) conducts a follow-up review within 90 days after notifying the contractor of the review findings to determine if the contractor complies with program requirements.

§12.455.What happens if DHS determines during the follow-up review that the day care home sponsor has not corrected all instances of program noncompliance identified in the initial review?

(a) DHS:

(1) denies administrative reimbursement for the months following the month of the initial review through the month of the follow-up review for any provider that was not issued program funds according to program requirements;

(2) establishes a cap on the number of day care homes the contractor can sponsor, not to exceed the number of day care homes sponsored at the time of the review;

(3) rescinds or denies approval for advance payments; and

(4) continues in the Serious Deficiency Process by notifying the sponsor that if the contractor fails to demonstrate at the second follow-up review that all serious deficiencies identified by DHS have been or will be corrected, DHS proposes to:

(A) terminate its agreement;

(B) disqualify the organization, responsible principals, and responsible individuals;

(D) debar individuals responsible for the deficiencies.

(b) If the contractor fails to demonstrate at the second follow-up review that all serious deficiencies identified by DHS have been or will be corrected, DHS conducts a second follow-up review no later than 45 days after notifying the contractor of the findings of the initial follow-up review to determine if the sponsor complies with requirements for paying providers according to program requirements.

§12.456.What happens after the second follow-up review if the day care home sponsor fails to demonstrate that all serious deficiencies identified by DHS have been or will be corrected?

DHS notifies the contractor that as a result of failure to correct all instances of noncompliance relating to the disbursement of provider funds:

(1) the contractor's agreement is terminated, in whole or in part, according to 7 CFR §226.6 and Division 19 of this subchapter (relating to Denials and Terminations);

(2) the contractor, responsible principals, and responsible individuals have been placed on the National Disqualified List;

(3) the contractor's eligible providers have been released to transfer to another approved sponsor; and

(4) all individuals responsible for the deficiencies are debarred.

§12.457.What happens if, during a review or an audit, DHS cites a day care home sponsor for deficiencies in administrative or financial capabilities because the sponsor has too many day care homes?

(1) places a cap on the number of day care homes the organization may sponsor;

(2) identifies the number of day care homes the sponsor can properly administer and immediately notifies the sponsor; and

(3) gives the sponsor 10 days to submit a plan to DHS to reduce the number of day care homes to the level of the approved cap.

§12.458.Can a day care home sponsor that is deficient in program operations add day care homes?

No. DHS does not approve additional day care homes for a day care home sponsor identified through audit or review as deficient in program operations until the organization submits to DHS an acceptable plan to correct the deficiency.

§12.459.What does DHS do if a contractor that is subject to the single audit requirements fails to submit an audit as required?

DHS places the contractor into the Serious Deficiency Process according to 7 CFR §226.6 and Division 19 of this subchapter (relating to Denials and Terminations).

§12.460.What does DHS do if a contractor fails to accomplish the required corrective action and permanently correct the serious deficiency regarding its single audit?

DHS informs the contractor in writing of its proposal to terminate the contractor's agreement and disqualify the organization and each responsible principal according to 7 CFR §226.6 and Divisions 19 and 20 of this subchapter (relating to Denials and Terminations and Appeals).

§12.461.Can a contractor appeal this action?

§12.462.If a contractor subject to the single audit requirements fails to obtain and submit an acceptable audit by the specified due date and DHS either conducts the audit or arranges for an audit to be conducted by a third party, who must pay for the audit?

§12.463.Can DHS extend the deadline by which a contractor must submit an audit?

Yes. DHS may extend the time by which a contractor must submit an audit if DHS determines such an extension is justified according to 7 CFR §3052.400.

§12.464.How must a contractor request an extension of its audit deadline?

A contractor must submit a written request for an extension. The request must:

(1) be postmarked or received by DHS no later than 30 calendar days before the prescribed audit deadline; and

(2) clearly identify the circumstances that prevent the contractor from submitting its audit by the prescribed audit deadline.

§12.465.Is DHS required to grant a contractor an extension of its audit deadline?

No. DHS grants an extension of the audit due date only if:

(1) the contractor's written request for an extension is postmarked or received by DHS no later than 30 calendar days before the audit due date; and

(2) DHS determines the reason the audit cannot be submitted by the due date demonstrates good cause beyond the contractor's control.

§12.466.How is a new audit due date determined?

(a) If DHS reviews the contractor's request for an extension of the audit due date and determines the new audit due date requested by the contractor is reasonable, DHS will approve the new audit due date requested by the contractor.

(b) If DHS determines the new date requested by the contractor is not reasonable, DHS will assign another audit due date.

§12.467.How is the contractor informed of the decision regarding the extension of its audit due date?

DHS informs the contractor in writing whether the contractor's request for an extension of its audit due date is approved. If the request is approved, DHS includes the new audit due date in the notice to the contractor.

§12.468.Can a contractor request more than one extension?

(2) be postmarked or received by DHS no later than 30 calendar days before the prescribed audit deadline;

(3) clearly identify the circumstances that prevent the contractor from submitting its audit by the prescribed audit deadline; and

§12.469.What does DHS do if DHS does not receive an audit by the specified deadline and an extension of the deadline has not been granted?

DHS places the contractor into the Serious Deficiency Process according to 7 CFR §226.6 and Division 19 of this subchapter (relating to Denials and Terminations).

§12.470.Must a contractor repay any overpayments identified through an audit finding?

§12.471.What happens if a day care home sponsor determines during a monitoring review or by other means that a provider has been seriously deficient in its operation of the CACFP?

A sponsor must deal with a seriously deficient provider according to 7 CFR §226.16 and §226.18.

§12.472.What happens if a day care home sponsor conducts two or more unannounced monitoring reviews in a 12-month period and cannot confirm that children are enrolled for child care and participating in the program?

(a) The sponsor must implement a corrective action plan to ensure it can effectively monitor the provider's participation in the program.

(b) A sponsor may suspend the participation of a day care home without a corrective action plan according to 7 CFR §226.16 if the local health or licensing official cites the day care home for serious health or safety violations.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305136

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

19. DENIALS AND TERMINATION

40 TAC §§12.491 - 12.497

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.491.What criteria does DHS use to deny applications and to terminate agreements for participation in the CACFP when a contractor fails to meet eligibility requirements?

(a) DHS denies applications and terminates agreements, in whole or in part, according to 7 CFR §§226.6, 226.14-226.19a, 226.23, and 226.25; 7 CFR Part 3015; and Section 17(a)(2)(B) of the National School Lunch Act (42 U.S.C. §1766), as amended.

(b) DHS denies an application and terminates an agreement, in whole or in part, with a contractor if:

(1) the contractor has permitted any individual identified in §12.37 of this chapter (relating to Are there any conditions that would make a contractor ineligible to participate in the CACFP?) to enter the facility when children are present; and

(2) the contractor has permitted any individual identified in §12.37 of this chapter to engage in any activity related to the administration of the CACFP.

§12.492.How does DHS notify a contractor of its denial of an application or proposal to terminate an agreement?

DHS notifies contractors according to 7 CFR §226.6 and this division.

§12.493.Does DHS deny an application for participation or terminate an agreement when a contractor subject to the bonding requirement identified in 7 CFR §226.6 and Division 2 of this subchapter (relating to Eligibility of Contractors and Facilities) fails to comply with that requirement?

Yes. DHS denies participation and terminates an agreement if a contractor does not submit and maintain in good standing a performance bond in the amount established by DHS.

§12.494.Can a contractor request relief from the bonding requirement?

A contractor can request relief from the bonding requirement only if it has no outstanding financial obligation to DHS.

§12.495.What criteria must a day care home sponsor use to deny or terminate agreements with a day care home?

A day care home sponsor denies or terminates agreements with a day care home according to 7 CFR §226.6 and §226.16, and this division.

§12.496.How does a day care home sponsor notify a day care home participating in the CACFP of its proposal to terminate the day care home's participation in the program?

A day care home sponsor must notify the day care home of its plans according to 7 CFR §226.6 and §226.16, and this division.

§12.497.Does DHS terminate an agreement with a contractor or deny the application of a contractor that has failed to permanently correct a serious deficiency in the administration of the CACFP?

Yes. DHS terminates an agreement, in whole or in part, and denies an application of a contractor who has been identified as seriously deficient according to program requirements as described in 7 CFR §226.6; and Divisions 2-5, 18, and 19 of this subchapter (relating to Eligibility of Contractors and Facilities; Contractor Application Process; Agreements; Contractor Standards and Responsibilities; Sanctions, Penalties, and Fiscal Action; and Denials and Termination).

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305137

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

20. APPEALS

40 TAC §§12.511 - 12.520

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.511.How does DHS conduct contractor and day care home appeals?

DHS conducts appeals according to 7 CFR §226.6 and §226.16; Chapter 79, Subchapter Q, of this title (relating to Formal Appeals); and Section 17(d) of the National School Lunch Act (42 U.S.C. §1766), as amended.

§12.512.How does DHS conduct food service management company appeals?

DHS conducts appeals according to 7 CFR §226.6 and Chapter 79, Subchapter Q, of this title (relating to Formal Appeals).

§12.513.Who conducts appeals based on federal audits?

Contractors appealing actions DHS takes that are based on the findings of federal audits must request a hearing to be conducted by USDA.

§12.514.How must participants appeal a contractor's denial of their eligibility for free and reduced-price meal benefits?

Participants must request an appeal for a contractor's denial of their eligibility for free and reduced-price meal benefits according to the procedures the contractor provides them as required by 7 CFR §226.23.

§12.515.Can a contractor appeal a DHS decision not to request a USDA determination of good cause for submission of a late claim?

§12.516.How does a contractor request an appeal?

A contractor can request an appeal according to procedures that DHS provides as required by 7 CFR §226.6(k).

§12.517.Can a contractor appeal if USDA decides that a late claim is ineligible for payment?

§12.518.Who is responsible for creating appeal procedures for sponsored day care homes?

A contractor that sponsors day care homes must develop appeal procedures according to 7 CFR §226.6(l) and §226.16 and submit them to DHS for approval.

§12.519.When is a contractor required to provide a day care home with appeal procedures?

A contractor must provide appeal procedures to each day care home when:

(1) the day care home enrolls in the CACFP; and

(2) the contractor takes an adverse action on the day care home provider.

§12.520.What is an adverse action?

An adverse action is any action that denies or reduces program benefits to the day care home.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305138

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

Subchapter B. SUMMER FOOD SERVICE PROGRAM (SFSP)

40 TAC §§12.601 - 12.603

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.601.What is the purpose of the Summer Food Service Program (SFSP)?

The SFSP provides nutritious meals to children in low-income areas during long school vacations when they do not have access to school lunch or breakfast.

§12.602.What do certain words and terms in this subchapter mean?

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

(3) SFSP--Summer Food Service Program.

(4) U.S.C.--United States Code.

(5) USDA--The United State Department of Agriculture.

(b) Other terms used in this subchapter are defined in 7 CFR §225.2.

§12.603.How is the SFSP authorized?

The SFSP is authorized by the National School Lunch Act (42 U.S.C. §1766), as amended.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305139

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

2. ELIGIBILITY OF SPONSORS AND FACILITIES

40 TAC §§12.611 - 12.618

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.611.How do sponsors qualify to participate in the SFSP?

Sponsors must meet the definitions in 7 CFR §225.2 and the requirements in 7 CFR §§225.6, 225.14, and 225.15; and 7 CFR Parts 15, 15(a), and 15(b).

§12.612.Are public school districts required to participate in the SFSP?

Public school districts in which 60% or more of the enrolled children are eligible to receive free meal benefits in the National School Lunch Program (NSLP) must operate directly or arrange for the operation of the SFSP in their districts according to the Human Resources Code, §33.024.

§12.613.If public schools are approved to participate in the National School Lunch Program, are they eligible to participate in the SFSP?

§12.614.Are any sponsors required to submit proof of tax-exempt status?

Nonprofit organizations must submit a formal determination from the United States Internal Revenue Service (IRS) stating that the sponsor has been granted tax-exempt status under the United States Internal Revenue Code of 1986, as amended, or proof of participation in another federally funded program that requires an IRS determination of tax-exempt status.

§12.615.Can a college or university participate as an SFSP sponsor on a year-round basis?

Yes. Colleges and universities can participate on a year-round basis if they also sponsor National Youth Sports Program drug awareness activities during the academic year.

§12.616.Does DHS approve applications from potential sponsors that do not provide year-round service to the communities they propose to serve?

DHS may approve the application of an otherwise eligible applicant that does not provide a year-round service to the community it proposes to serve if any of the following conditions exist:

(1) The community is a residential camp.

(2) The applicant proposes to provide a food service to the children of migrant workers.

(3) Failure to approve the application would deny the program to an area in which poor economic conditions exist.

(4) A significant number of needy children would not otherwise have reasonable access to the SFSP.

§12.617.Does DHS use a priority system when approving applicants that propose to serve the same area or the same enrolled children?

Yes. DHS determines on a case-by-case basis which sponsor or sponsors it will select to serve the needy children in an area according to 7 CFR §225.6.

§12.618.What documentation is a sponsor required to submit to show compliance with the Single Audit Act?

A sponsor must submit one of the following forms of documentation:

(1) a copy of an audit from a specific fiscal year that DHS has found compliant with the single audit requirements;

(3) evidence that the contractor is not subject to the single audit requirements according to 7 CFR Part 3052.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305140

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

3. APPLICATION PROCESS

40 TAC §§12.641 - 12.643

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.641.How does a sponsor apply to participate in the SFSP?

A sponsor must submit a completed application and all necessary supporting documentation to DHS by June 15 of the fiscal year for which the application is intended according to 7 CFR §225.6(b).

§12.642.What must a sponsor do if the information in its application changes?

A sponsor must submit an amendment when information in its application changes.

§12.643.What criteria does DHS use to approve or deny applications?

DHS approves or denies applications and subsequent amendments according to 7 CFR §225.6.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305141

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

4. SPONSOR STANDARDS AND RESPONSIBILITIES

40 TAC §§12.651 - 12.662

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.651.What are the rights and responsibilities of a sponsor that participates in the SFSP?

A sponsor must enter into an agreement with DHS to participate in the SFSP according to 7 CFR §225.6. This agreement is a legally binding document that specifies the rights and responsibilities of both the sponsor and DHS.

§12.652.Must a sponsor implement a particular financial management system?

Yes. A sponsor must implement the financial management system DHS mandates and maintain records supporting its participation according to 7 CFR §225.9 and 7 CFR Parts 3015, 3016, and 3019.

§12.653.Must a sponsor maintain records and documents related to its participation in the SFSP?

Yes. A sponsor must maintain financial documents, statistical records, and all other records of services for which it submits a claim in the manner and detail DHS prescribes.

§12.654.How long must a sponsor maintain records and documents pertaining to the program?

A sponsor must maintain all records and documents for the longer of three years and 90 days after the end of the program fiscal year to which they pertain or until all litigation, claims, audits, and investigation findings are resolved.

§12.655.When is litigation, a claim, an audit, or an investigation finding considered resolved?

DHS considers these actions resolved when a final order is issued in litigation or DHS and the sponsor sign a written agreement.

§12.656.Must a sponsor permit DHS to access its facilities and records?

Yes. A sponsor must allow DHS, USDA, and their representatives to inspect the sponsor's facilities and to audit, examine, and copy the sponsor's records during normal business hours.

§12.657.How must a sponsor procure foods, supplies, equipment, and other goods and services for the SFSP?

A sponsor must procure foods, supplies, equipment, and other goods and services for the SFSP according to 7 CFR §225.17.

§12.658.Must a sponsor manage its meal service according to any specific guidelines?

Yes. A sponsor must manage its meal service according to 7 CFR §225.16.

§12.659.How does a sponsor determine a participant's eligibility for free or reduced-price school meals?

A sponsor must determine eligibility according to 7 CFR §§225.2, 225.6, 225.13, 225.15, 225.17-225.19, and 245.6a.

§12.660.Must a sponsor comply with specific health standards when operating its food service?

Yes. A sponsor must comply with the health standards in 7 CFR §§225.6, 225.7, and 225.16.

§12.661.Must a sponsor prevent discrimination against participants in its SFSP operations?

Yes. A sponsor must strictly adhere to and enforce the nondiscrimination requirements of 7 CFR §225.6, the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act.

§12.662.Will a sponsor be discriminated against in the SFSP?

DHS administers the SFSP without regard to race, color, national origin, sex, age, disability, religion, or political beliefs. DHS complies with the nondiscrimination requirements of 7 CFR §225.3 and §225.7, and 7 CFR Parts 15, 15(a), and 15(b).

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305142

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

5. BUDGETS

40 TAC §§12.681 - 12.684

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.681.How must a sponsor submit an administrative budget for DHS approval?

A sponsor must submit its administrative budget for DHS approval according to 7 CFR §225.6.

§12.682.Can a sponsor adjust its approved budget?

Yes. However, since a sponsor's approved budget is part of its application, an adjustment to that budget is an application amendment that DHS must approve or deny.

§12.683.When must a sponsor submit budget information to DHS?

A sponsor must submit written justification for its original budget and for any amendments to DHS for approval before the planned effective date of the contract or amendment.

§12.684.Will DHS approve a budget adjustment retroactively?

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305143

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

6. FOOD SERVICE MANAGEMENT COMPANIES

40 TAC §§12.691 - 12.693

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.691.Can a sponsor contract with a food service management company or school food authority to obtain meals?

§12.692.How does a sponsor contract for the services of a food service management company (FSMC) or school food authority (SFA)?

A sponsor must contract the services of an FSMC or SFA according to 7 CFR §225.6 and §225.15.

§12.693.If a sponsor purchases meals from a food service management company, must it establish a special account for operating costs?

No. DHS does not require sponsors to establish a special account for operating costs.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305144

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

7. START-UP AND ADVANCE PAYMENTS

40 TAC §§12.701 - 12.703

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.701.Does DHS provide start-up payments to sponsors?

No. DHS does not exercise the option to issue start-up payments according to 7 CFR §225.9.

§12.702.Does DHS provide advance payment to sponsors before the end of the month in which the costs will be incurred?

Yes. DHS provides advance payment according to 7 CFR §§225.5, 225.6, and 225.9.

§12.703.Is there a limit to the amount of an advance payment?

No. DHS allows sponsors to request advances without a specific limit according to 7 CFR §§225.5, 225.6, and 225.9.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305145

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

8. COMMODITIES

40 TAC §12.711, §12.712

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.711.Does DHS provide commodity assistance to sponsors?

Yes. DHS provides commodity assistance to sponsors according to 7 CFR §225.9.

§12.712.How must a sponsor use these commodities?

A sponsor must use these commodities according to 7 CFR §225.9.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305146

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

9. REIMBURSEMENT

40 TAC §§12.721 - 12.735

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.721.Must a sponsor follow specific guidelines when claiming reimbursement?

Yes. When claiming reimbursement, a sponsor must comply with 7 CFR §225.9.

§12.722.Under what authority does DHS reimburse sponsors in the SFSP?

DHS reimburses sponsors according to USDA guidance and annually established rates of reimbursement according to 7 CFR §225.9 and the National School Lunch Act (42 U.S.C. §1766), as amended.

§12.723.Does DHS reimburse the cost of meals served to adults performing labor necessary for the operation of the SFSP?

Yes. The cost of meals served to adults who perform labor necessary for the operation of the SFSP is an allowable program cost according to 7 CFR §225.9(d).

§12.724.Does DHS provide supplemental reimbursement for meals served to children?

Subject to the availability of funds appropriated by the Texas Legislature, DHS may provide supplemental reimbursement for eligible meals served to eligible children by approved SFSP sponsors.

§12.725.Is there a specific deadline by which a sponsor must submit a claim for reimbursement?

A sponsor must ensure that claims for reimbursement are postmarked or received by DHS no later than 60 days after the end of the claim month.

§12.726.When must a sponsor combine two consecutive months of service on a single claim for reimbursement?

A sponsor that operates fewer than 10 days in the final month of service must combine the final month with the immediately preceding month to create a single claim.

§12.727.Is there a specific deadline by which a sponsor must submit a claim for reimbursement of two consecutive months of service?

A sponsor must ensure that the claim for reimbursement is postmarked or received by DHS no later than 60 days after the last day of meal service covered by the claim.

§12.728.Will DHS pay a claim for reimbursement if it is received or postmarked later than 60 days after the end of the claim month?

DHS will not pay a claim that is received or postmarked after the deadline unless USDA finds that good cause beyond the sponsor's control delayed the submission of the claim.

§12.729.How does DHS handle a claim received later than 60 days after the end of the claim month(s)?

DHS notifies the sponsor that it may submit a written request for payment demonstrating that good cause beyond the sponsor's control caused the claim to be received by DHS or postmarked after the deadline.

§12.730.What happens if DHS finds that good cause did not exist?

DHS notifies the sponsor that its request is not approved and will not be forwarded to USDA for consideration.

§12.731.What happens if DHS finds that good cause beyond the sponsor's control existed?

DHS forwards the request to USDA with a recommendation to pay the claim.

§12.732.What happens if USDA finds that good cause existed?

§12.733.What happens if USDA finds that good cause did not exist?

DHS may grant an exception and pay a late claim as long as the sponsor:

(2) has not been granted an exception in the 36 months preceding the month for which a request for an exception is submitted.

§12.734.Does a sponsor have the option not to submit a request for payment of a late claim based on good cause?

§12.735.If a sponsor chooses not to submit a request for payment of a late claim based on good cause, can a sponsor still be reimbursed for that claim?

DHS may grant an exception and pay a late claim as long as the sponsor:

(2) has not been granted an exception in the 36 months preceding the month for which a request for an exception is submitted.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305147

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

10. PROGRAM REVIEWS AND TECHNICAL ASSISTANCE

40 TAC §§12.751 - 12.753

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.751.Does DHS monitor a sponsor's activities?

Yes. DHS monitors a sponsor's activities according to 7 CFR §225.7.

§12.752.Is a sponsor required to administer and monitor its program operations?

Yes. A sponsor must administer and monitor its program operations according to 7 CFR §225.15.

§12.753.Is a sponsor required to conduct reviews of its facilities?

Yes. A sponsor must conduct reviews of its facilities according to 7 CFR §225.15.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305148

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

11. AUDITS

40 TAC §§12.761 - 12.764

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.761.Is a sponsor that participates in the SFSP subject to audit?

A sponsor that participates in the SFSP is subject to the single audit requirements according to 7 CFR §225.10 and 7 CFR Part 3052.

§12.762.Are certain sponsors exempt from the single audit requirements?

Yes. A sponsor that is a military installation is not subject to the single audit requirements according to 7 CFR Part 3052.

§12.763.When is an audit considered acceptable?

The sponsor has not fulfilled the audit requirement until DHS determines that the audit the sponsor submitted is acceptable according to the requirements of the Single Audit Act.

§12.764.How is a sponsor informed of its obligation to comply with the single audit requirements?

(a) DHS notifies the sponsor in writing, upon approval of its application to participate in the SFSP, that it is subject to the single audit requirements in 7 CFR Part 3052. The notification includes the date by which the sponsor must submit an acceptable audit to DHS.

(b) DHS also provides the sponsor with at least two written notices reminding the sponsor when its audit must be submitted to DHS.

(1) DHS issues one notice by regular mail no later than six months after the end of the sponsor's fiscal year for which the audit is due.

(2) DHS issues a subsequent notice by certified and regular mail eight months after the end of the sponsor's fiscal year for which the audit is due. This notice also informs the sponsor that failure to submit the audit to DHS by the required due date will result in adverse action, up to and including termination of their agreement.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305149

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

12. SANCTIONS AND PENALTIES

40 TAC §§12.771 - 12.784

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.771.Does DHS investigate irregularities in or complaints about a sponsor's operation of the SFSP?

DHS investigates irregularities in and complaints about a sponsor's operation of the SFSP and sanctions sponsors that do not meet requirements according to 7 CFR §225.11 and §225.12.

§12.772.What does DHS do if a sponsor that is subject to single audit requirements fails to submit an audit as required?

If DHS does not receive an audit by the established deadline, DHS notifies the sponsor by both certified mail, return receipt requested, and by standard United States Postal Service first-class mail that:

(1) the sponsor failed to submit an audit as required; and

(2) DHS intends to terminate the sponsor's agreement, in whole or in part, effective the first day of the month following the established deadline.

§12.773.Can a sponsor appeal this action?

Yes. A sponsor can appeal this action according to Chapter 79 of this title (relating to Legal Services) and 7 CFR §225.13.

§12.774.What does DHS do if extenuating circumstances prevent a sponsor from conducting an audit as required?

If DHS determines that there are extenuating circumstances, DHS may conduct an audit, either directly or through a third party.

§12.775.Who must pay for this audit?

The sponsor must pay for this audit.

§12.776.What does DHS do if a sponsor submits an audit that does not meet the single audit requirements as specified in 7 CFR Part 3052?

If a sponsor submits an unacceptable audit, DHS:

(1) notifies the sponsor of the audit's specific deficiencies;

(2) advises the sponsor of its right to appeal such a determination; and

(3) advises the sponsor that it has 30 calendar days from the date of the notification to submit an acceptable audit to DHS.

§12.777.Can DHS extend the deadline by which a sponsor must submit an audit?

Yes. DHS may extend the time within which a sponsor must submit an audit if DHS determines such an extension is justified according to 7 CFR §3052.400.

§12.778.How must a sponsor request an extension of its audit deadline?

A sponsor must submit a written request for an extension. The request must:

(1) be postmarked or received by DHS no later than 30 calendar days before the prescribed audit deadline;

(2) include a justification that demonstrates good cause beyond the sponsor's control for why the audit cannot be submitted by the prescribed due date; and

§12.779.Is DHS required to grant a sponsor an extension of its audit deadline?

No. DHS grants an extension of the audit due date only if:

(1) the sponsor's written request for an extension is postmarked or received by DHS no later than 30 calendar days before the audit due date; and

(2) DHS determines the reason the audit cannot be submitted by the due date demonstrates good cause beyond the sponsor's control.

§12.780.How is a new audit due date determined?

(a) If DHS reviews the sponsor's request for an extension of the audit due date and determines the new audit due date requested by the sponsor is reasonable, DHS will approve the new audit due date requested by the sponsor.

(b) If DHS determines the new date requested by the sponsor is not reasonable, DHS will assign another audit due date.

§12.781.How is the sponsor informed of the decision regarding the extension of its audit due date?

DHS informs the sponsor in writing whether the sponsor's request for an extension of its audit due date is approved. If the request is approved, DHS includes the new audit due date in the notice to the sponsor.

§12.782.Can a sponsor request more than one extension?

(2) be postmarked or received by DHS no later than 30 calendar days before the prescribed audit deadline;

(3) clearly identify the circumstances that prevent the sponsor from submitting its audit by the prescribed audit deadline; and

§12.783.What does DHS do if DHS does not receive an audit by the specified deadline and an extension of the deadline has not been granted?

DHS notifies the sponsor by both certified mail, return receipt requested, and by standard United States Postal Service first class mail that:

(1) the sponsor failed to submit an audit as required; and

(2) DHS intends to terminate the sponsor's agreement, in whole or in part, effective the first day of the month following the prescribed audit due date.

§12.784.Can a sponsor participate in any of the Special Nutrition Programs if DHS terminates its participation in the SFSP for failing to comply with the single audit requirements as stated in 7 CFR Part 3052?

A sponsor must submit an acceptable audit for each outstanding audit year and comply with the single audit requirements according to 7 CFR Part 3052 to be eligible to participate in any of the Special Nutrition Programs.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305150

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

13. SUSPENSION AND TERMINATION

40 TAC §12.801

The new section is proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new section implements the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.801.What regulations does DHS use to deny an application for participation in the SFSP and to terminate an agreement between DHS and a sponsor?

DHS denies applications and terminates agreements, in whole or in part, according to 7 CFR §§225.6, 225.11, and 225.18; and 7 CFR Part 3015.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305151

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

14. APPEALS

40 TAC §§12.811 - 12.814

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.811.How does a sponsor or food service management company (FSMC) appeal an adverse action by DHS?

A sponsor or FSMC can appeal any adverse action by submitting a written request for a hearing according to 7 CFR §225.13.

§12.812.When must a sponsor or food service management company (FSMC) submit an appeal?

According to 7 CFR §225.13(b)(2), a sponsor or FSMC must submit a written request for an appeal hearing within 10 days of receiving a notice of adverse action taken by DHS.

§12.813.If DHS declines to forward a late claim to USDA for a determination of good cause, can a sponsor appeal this decision?

A sponsor can appeal a DHS decision not to request a USDA determination of good cause for submission of a late claim, according to Division 9 of this subchapter (relating to Reimbursement).

§12.814.Can a sponsor appeal a USDA decision that a late claim is ineligible for payment?

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305152

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

Subchapter C. SPECIAL MILK PROGRAM (SMP)

40 TAC §§12.871 - 12.873

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.871.What is the purpose of the Special Milk Program (SMP)?

The Child Nutrition Act of 1966, as amended, established the SMP to encourage the consumption of fluid milk by children according to 7 CFR Parts 215 and 245.

§12.872.What do certain words and terms in the subchapter mean?

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

(3) SMP--Special Milk Program.

(4) USDA--The United States Department of Agriculture.

(b) Other terms used in this subchapter are defined in 7 CFR §215.2 and §245.2.

§12.873.How is the SMP administered in Texas?

(a) DHS administers the SMP in nonprofit private schools, nonprofit private residential child care institutions, summer camps, and nonprofit nonresidential child care facilities according to 7 CFR Parts 215, 245, and 3015; USDA Food and Nutrition Service (FNS) instructions; and other requirements specified by FNS.

(b) The Texas Department of Agriculture administers the SMP in public schools.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305153

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

2. CONTRACTOR ELIGIBILITY

40 TAC §12.881, §12.882

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.881.How does a contractor qualify to participate in the SMP?

A contractor must meet the definitions and requirements of a school or child care institution according to 7 CFR §215.2 and §215.7.

§12.882.What information must a contractor submit when applying to participate in the SMP?

A contractor must submit a complete application to participate in the SMP according to the requirements of 7 CFR Parts 215 and 245, in addition to one of the following items to demonstrate compliance with single audit requirements:

(1) a copy of an audit for a specific contractor fiscal year that DHS has found compliant with the single audit requirements;

(3) evidence that the contractor is not subject to the single audit requirements in 7 CFR Part 3052.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305154

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

3. CONTRACTOR PARTICIPATION REQUIREMENTS AND RESPONSIBILITIES

40 TAC §§12.901 - 12.903

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.901.What are the rights and responsibilities of a contractor that participates in the SMP?

A contractor must enter into an agreement with DHS to participate in the SMP. This agreement is a legally binding document that specifies the rights and responsibilities of both the contractor and DHS according to 7 CFR Parts 215, 245, 3015, 3019, 3052, 15, 15(a), and 15(b).

§12.902.Is a contractor that participates in the SMP subject to federal and state procurement guidelines?

Yes. A contractor participating in the SMP must comply with federal and state procurement guidelines stated in 7 CFR §215.14a.

§12.903.How does a contractor determine if an individual is eligible to participate and receive benefits in the SMP?

A contractor determines an individual's eligibility to participate in and receive benefits from the SMP according to 7 CFR §§245.3, 245.5, 245.6, and 245.9.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305155

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

4. REIMBURSEMENT AND FINANCIAL MANAGEMENT

40 TAC §§12.921 - 12.929

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.921.How does DHS reimburse a contractor for its participation in the SMP?

DHS reimburses a contractor according to the guidelines and annually established rates of reimbursement as stipulated in 7 CFR §§215.8-215.10.

§12.922.Will DHS pay a claim for reimbursement if it is received or postmarked later than 60 days after the end of the claim month?

DHS will not pay a claim that is received or postmarked after the deadline unless the USDA finds that good cause beyond the contractor's control delayed the submission of the claim.

§12.923.How does DHS process a claim received later than 60 days after the end of the claim month(s)?

§12.924.What happens if DHS finds that good cause did not exist?

DHS notifies the contractor that its request is not approved and will not be forwarded to USDA for consideration.

§12.925.What happens if DHS finds that good cause beyond the contractor's control existed?

DHS forwards the request to USDA with a recommendation to pay the claim.

§12.926.What happens if USDA finds that good cause existed?

§12.927.What happens if USDA finds that good cause did not exist?

DHS may grant an exception and pay a late claim as long as the contractor:

(2) has not been granted an exception in the 36 months preceding the month for which a request for an exception is submitted.

§12.928.Does a contractor have the option not to submit a request for payment of a late claim based on good cause?

§12.929.If a contractor chooses not to submit a request for payment of a late claim based on good cause, can a contractor still be reimbursed for that claim?

DHS may grant an exception and pay a late claim as long as the contractor:

(2) has not been granted an exception in the 36 months preceding the month for which a request for an exception is submitted.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305156

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

5. PROGRAM REVIEWS, MONITORING, AND MANAGEMENT EVALUATIONS

40 TAC §12.941, §12.942

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.941.How does DHS ensure that a contractor complies with SMP requirements?

DHS monitors contractor compliance according to 7 CFR §215.11 and §245.11.

§12.942.Does the USDA conduct management evaluations of contractors operating the SMP?

Yes. The USDA Food and Nutrition Service and the United States Office of Inspector General (OIG) may visit contractor operations. The OIG may audit any contractor's records and operations according to 7 CFR §215.13.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305157

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

6. AUDITS

40 TAC §§12.951 - 12.955

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.951.Must a contractor that participates in the SMP conduct audits?

Yes. A contractor participating in the SMP must conduct audits according to 7 CFR §220.15, 7 CFR Part 3052, and the applicable Office of Management and Budget (OMB) circulars as required by USDA's Food and Nutrition Service.

§12.952.Must a contractor that participates in the SMP comply with the requirements of the Single Audit Act?

Yes. An institution participating in the SMP is subject to the requirements of the Single Audit Act as contained in Office of Management and Budget Circular A-133.

§12.953.Are certain contractors not subject to the requirements of the Single Audit Act?

Yes. A contractor that is a federal entity, such as a military installation or an Indian reservation, is not subject to the Single Audit Act.

§12.954.When is an audit considered acceptable?

The contractor has not fulfilled the audit requirement until DHS determines that the audit the contractor submitted is acceptable according to the requirements of the Single Audit Act.

§12.955.How is a contractor informed of its obligation to comply with the single audit requirements?

(a) DHS notifies the contractor in writing, upon approval of its application to participate in the SMP, that it is subject to the single audit requirements in 7 CFR Part 3052. The notification includes the date by which the contractor must submit an acceptable audit to DHS.

(b) DHS also provides the contractor with at least two written notices reminding the contractor when its audit must be submitted to DHS.

(1) DHS issues one notice by regular mail no later than six months after the end of the contractor's fiscal year for which the audit is due.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305158

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

7. SANCTIONS, PENALTIES, AND FISCAL ACTION

40 TAC §§12.971 - 12.985

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.971.How does DHS penalize a contractor who is found guilty of embezzling, willfully misapplying, stealing, or obtaining by fraud any funds, assets, or property, whether received directly or indirectly from DHS?

DHS imposes penalties according to 7 CFR §215.6 and §215.12.

§12.972.Does DHS take fiscal action against a contractor that fails to comply with the program requirements specified in 7 CFR Parts 215 and 245?

Yes. DHS takes fiscal action according to 7 CFR §215.12 and §215.13.

§12.973.Does DHS investigate irregularities in or complaints about a contractor's operation of the SMP?

Yes. DHS investigates irregularities in or complaints about a contractor's operation of the SMP according to 7 CFR §215.12.

§12.974.What does DHS do if a contractor that is subject to single audit requirements fails to submit an audit as required?

If DHS does not receive an audit before the established deadline, DHS notifies the contractor by both certified mail, return receipt requested, and by standard United States Postal Service first-class mail that:

(1) the contractor failed to submit an audit as required; and

(2) DHS intends to terminate the contractor's agreement, in whole or in part, effective the first day of the month following the established deadline.

§12.975.What does DHS do if extenuating circumstances prevent a contractor from conducting an audit as required?

If DHS determines that there are extenuating circumstances, DHS may conduct an audit, either directly or through a third party.

§12.976.Who must pay for this audit?

§12.977.What does DHS do if a contractor submits an audit that does not meet the single audit requirements specified in 7 CFR Part 3052?

If a contractor submits an unacceptable audit, DHS:

(1) notifies the contractor of the audit's specific deficiencies;

(2) advises the contractor of its right to appeal such a determination; and

(3) advises the contractor that it has 30 calendar days from the date of the notification to submit an acceptable audit to DHS.

§12.978.Can DHS extend the deadline by which a contractor must submit an audit?

Yes. DHS may extend the time within which a contractor must submit an audit if DHS determines such an extension is justified according to 7 CFR §3052.400.

§12.979.How must a contractor request an extension of its audit deadline?

A contractor must submit a written request for an extension. The request must:

(1) be postmarked or received by DHS no later than 30 calendar days before the prescribed audit deadline;

(2) include a justification that demonstrates good cause beyond the contractor's control for why the audit cannot be submitted by the prescribed due date; and

§12.980.Is DHS required to grant a contractor an extension of its audit deadline?

No. DHS grants an extension of the audit due date only if:

(1) the contractor's written request for an extension is postmarked or received by DHS no later than 30 calendar days before the audit due date; and

(2) DHS determines the reason the audit cannot be submitted by the due date demonstrates good cause beyond the contractor's control.

§12.981.How is a new audit due date determined?

(b) If DHS determines the new date requested by the contractor is not reasonable, DHS will assign another audit due date.

§12.982.How is the contractor informed of the decision regarding the extension of its audit due date?

§12.983.Can a contractor request more than one extension?

(2) be postmarked or received by DHS no later than 30 calendar days before the prescribed audit deadline;

(3) clearly identify the circumstances that prevent the contractor from submitting its audit by the prescribed audit deadline; and

§12.984.What does DHS do if DHS does not receive an audit by the specified deadline and an extension of the deadline has not been granted?

DHS notifies the contractor by both certified mail, return receipt requested, and by standard United States Postal Service first- class mail that:

(1) the contractor failed to submit an audit as required; and

(2) DHS intends to terminate the contractor's agreement, in whole or in part, effective the first day of the month following the prescribed audit due date.

§12.985.Can a contractor participate in any of the Special Nutrition Programs if DHS terminates its participation in the SMP for failing to comply with the single audit requirements?

A contractor must submit an acceptable audit for each outstanding audit year and comply with the single audit requirements according to 7 CFR Part 3052 to be eligible to reapply to participate in any of the Special Nutrition Programs.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305159

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

8. SUSPENSION AND TERMINATION

40 TAC §12.991

The new section is proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new section implements the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.991.How does DHS terminate or suspend a contract?

DHS terminates or suspends contracts according to 7 CFR §215.7 and §215.15.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305160

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

9. APPEALS

40 TAC §12.1001, §12.1002

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.1001.Does a contractor applying to participate in the SMP have the right to appeal the denial of its contract application?

§12.1002.Does a contractor participating in the SMP have the right to appeal any action that affects its continued participation in the SMP or affects its claim for reimbursement?

A contractor participating in the SMP has limited appeal rights.

(1) The only adverse action that an SMP contractor may appeal is an adjustment to its claim for reimbursement required as a direct result of a finding from an administrative review conducted by DHS or USDA.

(2) The contractor requests an appeal for such action according to 7 CFR §215.11 and Chapter 79 of this title (relating to Legal Services).

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305161

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

Subchapter D. SCHOOL BREAKFAST PROGRAM (SBP)

40 TAC §§12.1051 - 12.1053

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.1051.What is the purpose of the School Breakfast Program (SBP)?

The Child Nutrition Act of 1966, as amended, established the SBP to initiate, maintain, and expand nonprofit breakfast programs in schools according to 7 CFR Parts 220 and 245.

§12.1052.What do certain words and terms in this subchapter mean?

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

(3) SBP--School Breakfast Program.

(4) USDA--The United States Department of Agriculture.

(b) Other terms used in this subchapter are defined in 7 CFR §220.2 and §245.2.

§12.1053.How is the SBP administered in Texas?

(a) DHS administers the SBP in nonprofit private schools and nonprofit residential child care institutions according to 7 CFR Parts 220, 245, and 3015; USDA Food and Nutrition Service (FNS) instructions; and other requirements specified by FNS.

(b) The Texas Department of Agriculture administers the SBP in public schools.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305162

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

2. CONTRACTOR ELIGIBILITY

40 TAC §12.1071, §12.1072

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.1071.How does a contractor qualify to participate in the SBP?

A contractor must meet the definitions and requirements of a school and provide breakfast to children according to 7 CFR §220.2.

§12.1072.What information must a contractor submit when applying to participate in the SBP?

A contractor must submit a complete application to participate in the SBP according to the requirements of 7 CFR Parts 220 and 245, in addition to one of the following items to demonstrate compliance with single audit requirements:

(1) a copy of an audit for a specific contractor fiscal year that DHS has found compliant with the single audit requirements;

(3) evidence that the contractor is not subject to the single audit requirements in 7 CFR Part 3052.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305163

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

3. CONTRACTOR PARTICIPATION REQUIREMENTS AND RESPONSIBILITIES

40 TAC §§12.1091 - 12.1094

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.1091.What are the rights and responsibilities of a contractor that participates in the SBP?

A contractor must enter into an agreement with DHS to participate in the SBP. This agreement is a legally binding document that specifies the rights and responsibilities of both the contractor and DHS according to 7 CFR Parts 220, 245, 3015, 3052, 3019, 15, 15(a), and 15(b).

§12.1092.Does DHS impose any special curriculum or educational conditions or restrictions as a requirement for participation in the SBP?

No. DHS does not impose any special curriculum or educational requirements according to 7 CFR §220.17.

§12.1093.Is a contractor that participates in the SBP subject to federal and state procurement guidelines?

Yes. A contractor participating in the SBP must comply with federal and state procurement guidelines stated in 7 CFR §220.16.

§12.1094.How does a contractor determine if an individual is eligible to participate and receive benefits in the SBP?

A contractor determines an individual's eligibility to participate and receive benefits in the SBP according to 7 CFR §§245.3, 245.5, 245.6, and 245.9.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305164

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

4. REIMBURSEMENT AND FINANCIAL MANAGEMENT

40 TAC §§12.1101 - 12.1110

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.1101.How does DHS reimburse a contractor for its participation in the SBP?

DHS reimburses each contractor according to the guidelines and annually established rates of reimbursement as stipulated in 7 CFR §§220.9-220.11.

§12.1102.Does DHS make advance payments?

§12.1103.Will DHS pay a claim for reimbursement if it is received or postmarked later than 60 days after the end of the claim month?

DHS will not pay a claim that is received or postmarked after the deadline unless the USDA finds that good cause beyond the contractor's control delayed the submission of the claim.

§12.1104.How does DHS process a claim received later than 60 days after the end of the claim month(s)?

§12.1105.What happens if DHS finds that good cause did not exist?

DHS notifies the contractor that its request is not approved and will not be forwarded to USDA for consideration.

§12.1106.What happens if DHS finds that good cause beyond the contractor's control existed?

DHS forwards the request to USDA with a recommendation to pay the claim.

§12.1107.What happens if USDA finds that good cause existed?

§12.1108.What happens if USDA finds that good cause did not exist?

DHS may grant an exception and pay a late claim as long as the contractor:

(2) has not been granted an exception in the 36 months preceding the month for which a request for an exception is submitted.

§12.1109.Does a contractor have the option not to submit a request for payment of a late claim based on good cause?

§12.1110.If a contractor chooses not to submit a request for payment of a late claim based on good cause, can a contractor still be reimbursed for that claim?

DHS may grant an exception and pay a late claim as long as the contractor:

(2) has not been granted an exception in the 36 months preceding the month for which a request for an exception is submitted.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305165

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

5. PROGRAM REVIEWS, MONITORING, AND MANAGEMENT EVALUATIONS

40 TAC §12.1121, §12.1122

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.1121.How does DHS ensure that a contractor complies with SBP requirements?

DHS monitors contractor compliance according to 7 CFR §245.11 and 7 CFR Part 220.

§12.1122.Does the USDA conduct management evaluations of contractors operating the SBP?

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305166

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

6. AUDITS

40 TAC §§12.1131 - 12.1135

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.1131.Must a contractor that participates in the SBP conduct audits?

Yes. A contractor participating in the SBP must conduct audits according to 7 CFR §220.15, 7 CFR Part 3052, and the applicable Office of Management and Budget (OMB) circulars as required by USDA's Food and Nutrition Service.

§12.1132.Must a contractor that participates in the SBP comply with the requirements of the Single Audit Act?

Yes. An institution participating in the SBP is subject to the requirements of the Single Audit Act as contained in Office of Management and Budget Circular A-133.

§12.1133.Are certain contractors not subject to the requirements of the Single Audit Act?

Yes. A contractor that is a federal entity, such as a military installation or an Indian reservation, is not subject to the Single Audit Act.

§12.1134.When is an audit considered acceptable?

The contractor has not fulfilled the audit requirement until DHS determines that the audit the contractor submitted is acceptable according to the requirements of the Single Audit Act.

§12.1135.How is a contractor informed of its obligation to comply with the single audit requirements?

(a) DHS notifies the contractor in writing, upon approval of its application to participate in the SBP, that it is subject to the single audit requirements in 7 CFR Part 3052. The notification includes the date by which the contractor must submit an acceptable audit to DHS.

(b) DHS also provides the contractor with at least two written notices reminding the contractor when its audit must be submitted to DHS.

(1) DHS issues one notice by regular mail no later than six months after the end of the contractor's fiscal year for which the audit is due.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305167

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

7. SANCTIONS, PENALTIES, AND FISCAL ACTION

40 TAC §§12.1151 - 12.1165

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.1151.How does DHS penalize a contractor who is found guilty of embezzling, willfully misapplying, stealing, or obtaining by fraud any funds, assets, or property, whether received directly or indirectly from DHS?

DHS imposes penalties according to 7 CFR §220.6 and §220.18.

§12.1152.Does DHS take fiscal action against a contractor that fails to comply with the program requirements specified in 7 CFR Parts 220 and 245?

Yes. DHS takes fiscal action according to 7 CFR §220.13 and §220.14.

§12.1153.Does DHS investigate irregularities in or complaints about a contractor's operation of the SBP?

DHS investigates irregularities in or complaints about a contractor's operation of the SBP according to 7 CFR §220.13.

§12.1154.What does DHS do if a contractor that is subject to single audit requirements fails to submit an audit as required?

(1) the contractor failed to submit an audit as required; and

(2) DHS intends to terminate the contractor's agreement, in whole or in part, effective the first day of the month following the established deadline.

§12.1155.What does DHS do if extenuating circumstances prevent a contractor from conducting an audit as required?

If DHS determines that there are extenuating circumstances, DHS may conduct an audit, either directly or through a third party.

§12.1156.Who must pay for this audit?

§12.1157.What does DHS do if a contractor submits an audit that does not meet the single audit requirements specified in 7 CFR Part 3052?

If a contractor submits an unacceptable audit, DHS:

(1) notifies the contractor of the audit's specific deficiencies;

(2) advises the contractor of its right to appeal such a determination; and

(3) advises the contractor that it has 30 calendar days from the date of the notification to submit an acceptable audit to DHS.

§12.1158.Can DHS extend the deadline by which a contractor must submit an audit?

Yes. DHS may extend the time within which a contractor must submit an audit if DHS determines such an extension is justified according to 7 CFR §3052.400.

§12.1159.How must a contractor request an extension of its audit deadline?

A contractor must submit a written request for an extension. The request must:

(1) be postmarked or received by DHS no later than 30 calendar days before the prescribed audit deadline;

(2) include a justification that demonstrates good cause beyond the contractor's control for why the audit cannot be submitted by the prescribed due date; and

§12.1160.Is DHS required to grant a contractor an extension of its audit deadline?

No. DHS grants an extension of the audit due date only if:

(1) the contractor's written request for an extension is postmarked or received by DHS no later than 30 calendar days before the audit due date; and

(2) DHS determines the reason the audit cannot be submitted by the due date demonstrates good cause beyond the contractor's control.

§12.1161.How is a new audit due date determined?

(b) If DHS determines the new date requested by the contractor is not reasonable, DHS will assign another audit due date.

§12.1162.How is the contractor informed of the decision regarding the extension of its audit due date?

§12.1163.Can a contractor request more than one extension?

(2) be postmarked or received by DHS no later than 30 calendar days before the prescribed audit deadline;

(3) clearly identify the circumstances that prevent the contractor from submitting its audit by the prescribed audit deadline; and

§12.1164.What does DHS do if DHS does not receive an audit by the specified deadline and an extension of the deadline has not been granted?

DHS notifies the contractor by both certified mail, return receipt requested, and by standard United States Postal Service first- class mail that:

(1) the contractor failed to submit an audit as required; and

(2) DHS intends to terminate the contractor's agreement, in whole or in part, effective the first day of the month following the prescribed audit due date.

§12.1165.Can a contractor participate in any of the Special Nutrition Programs if DHS terminates its participation in the SBP for failing to comply with the single audit requirements?

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305168

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

8. SUSPENSION AND TERMINATION

40 TAC §12.1191

The new section is proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new section implements the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.1191.How does DHS terminate or suspend a contract?

DHS terminates or suspends contracts according to 7 CFR §220.7 and §220.18.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305169

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

9. APPEALS

40 TAC §12.1201, §12.1202

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.1201.Does a contractor applying to participate in the SBP have the right to appeal the denial of its contract application?

§12.1202.Does a contractor participating in the SBP have the right to appeal any action that affects its continued participation in the SBP or affects its claim for reimbursement?

A contractor participating in the SBP has limited appeal rights.

(1) The only adverse action that an SBP contractor may appeal is an adjustment to its claim for reimbursement required as a direct result of a finding from an administrative review conducted by DHS or USDA.

(2) The contractor requests an appeal for such action according to 7 CFR §220.13 and Chapter 79 of this title (relating to Legal Services).

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305170

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

Subchapter E. NATIONAL SCHOOL LUNCH PROGRAM (NSLP)

40 TAC §§12.1251 - 12.1253

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.1251.What is the purpose of the National School Lunch Program (NSLP)?

The National School Lunch Act established the NSLP as a measure of national security to safeguard the health and well being of the nation's children and to encourage the domestic consumption of nutritious agricultural commodities and other food. The NSLP also provides an adequate supply of food and other facilities for the establishment, maintenance, operation, and expansion of nonprofit school lunch programs according to 7 CFR Parts 210 and 245.

§12.1252.What do certain words and terms in this subchapter mean?

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

(3) NSLP--National School Lunch Program.

(4) USDA--The United States Department of Agriculture.

(b) Other terms used in this subchapter are defined in 7 CFR §210.2 and §245.2.

(c) For the purposes of the Afterschool Care Snack program, the term "child" as defined in 7 CFR Part 210 is expanded to include individuals:

(1) through age 18, including children of migrant workers;

(2) who turn 19 during the school year; or

(3) who are determined to be mentally or physically disabled, regardless of age.

§12.1253.How is the NSLP administered in Texas?

(a) DHS administers the NSLP in nonprofit private schools and nonprofit residential child care institutions according to 7 CFR Parts 210, 245, and 3015; USDA's Food and Nutrition Service (FNS) instructions, and other requirements specified by FNS.

(b) The Texas Department of Agriculture administers the NSLP in public schools.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305171

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

2. CONTRACTOR ELIGIBILITY

40 TAC §12.1261 - 12.1264

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.1261.How does a contractor qualify to participate in the NSLP?

A contractor must meet the definitions and requirements of a school and provide lunches to children according to 7 CFR §210.2.

§12.1262.What information must a contractor submit when applying to participate in the NSLP?

A contractor must submit a complete application to participate in the NSLP according to the requirements of 7 CFR Parts 210 and 245, in addition to one of the following items to demonstrate compliance with single audit requirements:

(1) a copy of an audit for a specific contractor fiscal year that DHS has found compliant with the single audit requirements;

(3) evidence that the contractor is not subject to the single audit requirements in 7 CFR Part 3052.

§12.1263.Must a school food authority (SFA) meet any specific requirements in order to be eligible to administer an Afterschool Care Snack program in the NSLP?

In order to administer an Afterschool Care Snack program in the NSLP, an SFA must operate the lunch component of the NSLP and retain final administrative and financial responsibility for the program.

§12.1264.What documentation must a school food authority (SFA) provide to demonstrate that an Afterschool Care Snack program facility has been determined exempt from state licensing requirements?

An SFA must provide written documentation from the Texas Department of Protective and Regulatory Services (PRS) stating that PRS has determined that the particular after school snack program facility is exempt from state licensing requirements.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305172

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

3. CONTRACTOR PARTICIPATION REQUIREMENTS AND RESPONSIBILITIES

40 TAC §§12.1281 - 12.1284

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.1281.What are the rights and responsibilities of a contractor that participates in the NSLP?

(a) A contractor must enter into an agreement with DHS to participate in the NSLP. This agreement is a legally binding document that specifies the rights and responsibilities of both the sponsor and DHS as stated in 7 CFR Parts 210, 245, 3015, 3019, 3052, 15, 15(a), and 15(b).

(b) If a contractor operates an after school program, the contractor must agree, if approved, to sponsor or operate a program that:

(1) provides free snacks to all eligible children participating in an Afterschool Care Snack program operated in an area served by a school in which 50% or more of the enrolled children are eligible for free or reduced-price meals;

(2) charges no more than $.15 per snack served to children eligible for reduced-price meals if operating a site located in an area served by a school in which fewer than 50% of the enrolled children are eligible for free or reduced-price meals;

(3) provides children with regularly scheduled activities in an organized, structured, and supervised environment after their school day has ended, excluding weekends and holidays;

(4) includes educational or enrichment activities; and

(5) meets state or local licensing requirements as applicable, or otherwise meets state or local health and safety standards.

(1) is not comprised of an organized athletic program engaged in interscholastic or community level competitive sports; and

(2) does not limit membership for reasons other than space security. Where applicable, licensing requirements may include supervised athletic activities in their program.

§12.1282.Does DHS impose any special curriculum or educational conditions or restrictions as a requirement for participation in the NSLP?

No. DHS does not impose any special curriculum or educational requirements according to 7 CFR §210.27.

§12.1283.Is a contractor that participates in the NSLP subject to federal and state procurement guidelines?

Yes. A contractor participating in the NSLP must comply with federal and state procurement guidelines stated in 7 CFR §210.21.

§12.1284.How does a contractor determine if an individual is eligible to participate and receive benefits in the NSLP?

A contractor determines an individual's eligibility to participate and receive benefits in the NSLP according to 7 CFR §§245.3, 245.5, 245.6, and 245.9.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305173

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

4. REIMBURSEMENT AND FINANCIAL MANAGEMENT

40 TAC §§12.1301 - 12.1312

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.1301.How does DHS reimburse a contractor for its participation in the NSLP?

DHS reimburses each contractor according to the guidelines and annually established rates of reimbursement as stipulated in 7 CFR §210.7 and §210.8.

§12.1302.Does DHS make advance payments?

§12.1303.Can a school participating in an approved after school program claim reimbursement for snacks?

Yes. A school participating in an approved after school program can claim reimbursement for one snack per child per day served to a child who attends the after school program at that school.

§12.1304.How does DHS determine the rate of reimbursement for eligible snacks served in an after school program?

(a) DHS reimburses the contractor at the free rate for all eligible snacks served at an after school site located in an area served by a school where 50% or more of enrolled children are eligible for free or reduced price meals.

(b) At sites where fewer than 50% of the enrolled children are eligible for free or reduced-price meals, the contractor must document the eligibility of participating children and claim reimbursement for snacks based on the eligibility category (free, reduced-price, and paid) of program participants.

§12.1305.Will DHS pay a claim for reimbursement if it is received or postmarked later than 60 days after the end of the claim month?

DHS will not pay a claim that is received or postmarked after the deadline unless USDA finds that good cause beyond the contractor's control delayed the submission of the claim.

§12.1306.How does DHS process a claim received later than 60 days after the end of the claim month(s)?

§12.1307.What happens if DHS finds that good cause did not exist?

DHS notifies the contractor that its request is not approved and will not be forwarded to USDA for consideration.

§12.1308.What happens if DHS finds that good cause beyond the contractor's control existed?

DHS forwards the request to USDA with a recommendation to pay the claim.

§12.1309.What happens if USDA finds that good cause existed?

§12.1310.What happens if USDA finds that good cause did not exist?

DHS may grant an exception and pay a late claim as long as the contractor:

(2) has not been granted an exception in the 36 months preceding the month for which a request for an exception is submitted.

§12.1311.Does a contractor have the option not to submit a request for payment of a late claim based on good cause?

§12.1312.If a contractor chooses not to submit a request for payment of a late claim based on good cause, can a contractor still be reimbursed for that claim?

DHS may grant an exception and pay a late claim as long as the contractor:

(2) has not been granted an exception in the 36 months preceding the month for which a request for an exception is submitted.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305174

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

5. PROGRAM REVIEWS, MONITORING, AND MANAGEMENT EVALUATIONS

40 TAC §12.1331, §12.1332

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.1331.How does DHS ensure that a contractor complies with NSLP requirements?

DHS monitors contractor compliance according to 7 CFR §210.18 and §245.11.

§12.1332.Does USDA conduct management evaluations of contractors operating the NSLP?

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305175

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

6. AUDITS

40 TAC §§12.1341 - 12.1345

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.1341.Must a contractor that participates in the NSLP conduct audits?

Yes. A contractor participating in the NSLP must conduct audits according to 7 CFR §210.22 and 7 CFR Part 3052.

§12.1342.Must a contractor that participates in the NSLP comply with the requirements of the Single Audit Act?

Yes. An institution participating in the NSLP is subject to the requirements of the Single Audit Act as contained in Office of Management and Budget Circular A-133.

§12.1343.Are certain contractors not subject to the requirements of the Single Audit Act?

Yes. A contractor that is a federal entity, such as a military installation or an Indian reservation, is not subject to the Single Audit Act.

§12.1344.When is an audit considered acceptable?

The contractor has not fulfilled the audit requirement until DHS determines that the audit the contractor submitted is acceptable according to the requirements of the Single Audit Act.

§12.1345.How is a contractor informed of its obligation to comply with the single audit requirements?

(a) DHS notifies the contractor in writing, upon approval of its application to participate in the NSLP, that it is subject to the single audit requirements in 7 CFR Part 3052. The notification includes the date by which the contractor must submit an acceptable audit to DHS.

(b) DHS also provides the contractor with at least two written notices reminding the contractor when its audit must be submitted to DHS.

(1) DHS issues one notice by regular mail no later than six months after the end of the contractor's fiscal year for which the audit is due.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305176

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

7. SANCTIONS, PENALTIES, AND FISCAL ACTION

40 TAC §§12.1361 - 12.1375

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.1361.How does DHS penalize a contractor who is found guilty of embezzling, willfully misapplying, stealing, or obtaining by fraud any funds, assets, or property, whether received directly or indirectly from DHS?

DHS imposes penalties according to 7 CFR §210.26.

§12.1362.Does DHS take fiscal action against a contractor that fails to comply with the program requirements specified in 7 CFR Parts 210 and 245?

Yes. DHS takes fiscal action according to 7 CFR §§210.18, 210.19(c), and 210.24.

§12.1363.Does DHS investigate irregularities in or complaints about a contractor's operation of the NSLP?

Yes. DHS investigates irregularities in or complaints about a contractor's operation of the NSLP according to 7 CFR §210.19.

§12.1364.What does DHS do if a contractor that is subject to single audit requirements fails to submit an audit as required?

(1) the contractor failed to submit an audit as required; and

(2) DHS intends to terminate the contractor's agreement, in whole or in part, effective the first day of the month following the established deadline.

§12.1365.What does DHS do if extenuating circumstances prevent a contractor from conducting an audit as required?

If DHS determines that there are extenuating circumstances, DHS may conduct an audit, either directly or through a third party.

§12.1366.Who must pay for this audit?

§12.1367.What does DHS do if a contractor submits an audit that does not meet the single audit requirements specified in 7 CFR Part 3052?

If a contractor submits an unacceptable audit, DHS:

(1) notifies the contractor of the audit's specific deficiencies;

(2) advises the contractor of its right to appeal such a determination; and

(3) advises the contractor that it has 30 calendar days from the date of the notification to submit an acceptable audit to DHS.

§12.1368.Can DHS extend the deadline by which a contractor must submit an audit?

Yes. DHS may extend the time within which a contractor must submit an audit if DHS determines such an extension is justified according to 7 CFR §3052.400.

§12.1369.How must a contractor request an extension of its audit deadline?

A contractor must submit a written request for an extension. The request must:

(1) be postmarked or received by DHS no later than 30 calendar days before the prescribed audit deadline;

(2) include a justification that demonstrates good cause beyond the contractor's control for why the audit cannot be submitted by the prescribed due date; and

§12.1370.Is DHS required to grant a contractor an extension of its audit deadline?

No. DHS grants an extension of the audit due date only if:

(1) the contractor's written request for an extension is postmarked or received by DHS no later than 30 calendar days before the audit due date; and

(2) DHS determines the reason the audit cannot be submitted by the due date demonstrates good cause beyond the contractor's control.

§12.1371.How is a new audit due date determined?

(b) If DHS determines that the new date requested by the contractor is not reasonable, DHS will assign another audit due date.

§12.1372.How is the contractor informed of the decision regarding the extension of its audit due date?

§12.1373.Can a contractor request more than one extension?

(2) be postmarked or received by DHS no later than 30 calendar days before the prescribed audit deadline;

(3) clearly identify the circumstances that prevent the contractor from submitting its audit by the prescribed audit deadline; and

§12.1374.What does DHS do if DHS does not receive an audit by the specified deadline and an extension of the deadline has not been granted?

DHS notifies the contractor by both certified mail, return receipt requested, and by standard United States Postal Service first- class mail that:

(1) the contractor failed to submit an audit as required; and

(2) DHS intends to terminate the contractor's agreement, in whole or in part, effective the first day of the month following the prescribed audit due date.

§12.1375.Can a contractor participate in any of the Special Nutrition Programs if DHS terminates its participation in the NSLP for failing to comply with the single audit requirements?

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305177

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

8. SUSPENSION AND TERMINATION

40 TAC §12.1401

The new section is proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new section implements the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.1401.How does DHS terminate or suspend contracts?

DHS terminates or suspends contracts according to 7 CFR §210.9 and §210.25.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305178

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

9. APPEALS

40 TAC §12.1411, §12.1412

The new sections are proposed under the Human Resources Code, Chapters 22 and 33, which authorizes DHS to administer public and nutritional assistance programs.

The new sections implement the Human Resources Code, §§22.0001-22.038 and §§33.001-33.027.

§12.1411.Does a contractor applying to participate in the NSLP have the right to appeal the denial of its contract application?

§12.1412.Does a contractor participating in the NSLP have the right to appeal any action that affects its continued participation in the NSLP or affects its claim for reimbursement?

A contractor participating in the NSLP has limited appeal rights.

(1) The only adverse action that an NSLP contractor may appeal is an adjustment to its claim for reimbursement required as a direct result of a finding from an administrative review conducted by DHS or USDA.

(2) The contractor requests an appeal for such action according to 7 CFR §210.18 and §210.19 and Chapter 79 of this title (relating to Legal Services).

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 13, 2003.

TRD-200305179

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 438-3734

Part 3. TEXAS COMMISSION ON ALCOHOL AND DRUG ABUSE

Chapter 141. GENERAL PROVISIONS

40 TAC §§141.11, 141.21, 141.31, 141.51 - 141.55, 141.61, 141.62, 141.71

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission on Alcohol and Drug Abuse or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The Texas Commission on Alcohol and Drug Abuse (TCADA) proposes the repeal of Chapter 141, concerning General Provisions.

Sections 141.11, 141.21, and 141.31 establish the process for receiving public comment during board meetings; and contain information on TCADA's Statewide Planning Advisory Committee, approval authority for contracts, legislative budget requests, and agency budgets.

Sections 141.51 - 141.55 delineate the process for filing claims against TCADA and how those claims will be handled. Also included is information on timetable for contested case hearings and mediation.

Sections 141.61, 141.62, and 141.71 pertain to TCADA's procurement process.

The repeal of Chapter 141 is proposed because TCADA is adopting new rules. The new rules will be reorganized to provide a more functional and logical framework that is more closely aligned with the other agencies operating under the Health and Human Services Commission.

Thomas F. Best, General Counsel, has determined that there will be no fiscal implications for state or local government for the first five-year period the repeal is in effect.

Mr. Best has also determined that for each year of the first five years the repeal is in effect the anticipated public benefit will be reduced duplicative information which should reduce cost and greater clarity regarding expectations TCADA has for individuals and organizations providing substance abuse services in Texas so that concentration on quality of care issues and service outcomes results. There will be no effect on small businesses and there is no anticipated economic cost to current providers.

Comments on the proposal may be submitted to Albert Ruiz, Texas Commission on Alcohol and Drug Abuse, P.O. Box 80529, Austin, Texas 78708-0529. Comments may also be submitted electronically to rules.revisions@tcada.state.tx.us or faxed to (512) 821-4419. All comments must be received no later than 30 days from the date the proposal is published in the Texas Register .

The repeal of Chapter 141 is proposed under the Texas Health and Safety Code, §461.012(a)(15) which provides the commission with the authority to adopt rules governing the functions of the commission, including rules that prescribe the policies and procedures followed by the commission when funding services and §461.0141 which provides the commission with authority to adopt rules regarding purchase of services. The repeal is also proposed under Texas Health and Safety Code Chapter 464, which provides TCADA with the authority to adopt rules and standards for the licensure of chemical dependency treatment facilities.

The codes affected by the proposed repeal are Chapters 461 and 464 of the Texas Health and Safety Code.

§141.11.Public Comment and Requests.

§141.21.Statewide Planning Advisory Committee.

§141.31.Approval Authority.

§141.51.Notice of Claim.

§141.52.Agency Counterclaim.

§141.53.Timetable for Negotiations and Contested Case Hearings.

§141.54.Conduct of Negotiations.

§141.55.Mediation.

§144.61.Procurement.

§141.62.Procurement Protests.

§141.71.Training and Education.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 15, 2003.

TRD-200305246

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Chapter 141. GENERAL PROVISIONS

The Texas Commission on Alcohol and Drug Abuse (TCADA) proposes new Chapter 141, §§141.101, 141.201 - 141.205, 141.301, 141.302, 141.401, and 141.501 - 141.503, pertaining to General Provisions. TCADA has submitted its proposal to repeal the existing Chapter 141 to the Texas Register for publication in the this issue.

The new Chapter 141 has been reorganized to provide a more functional and logical framework. It includes definitions that will apply across all chapters of TCADA rules. These definitions have been restructured and, in some cases, rewritten. New definitions were added as appropriate due to changes in other proposed rules.

The proposed new rules contain general provisions relating to the general operations of TCADA. These provisions include language relating to contract claims, procurement, public comment, approval authority, and training and education of employees. Language regarding advisory committees has not been carried forward from the previous rules. Provisions of former Chapter 146 (relating to Interagency Agreements) are now included in this proposed Chapter 141 as Subchapter D.

No significant changes were made to former §§141.31, 141.51 - 141.54, 141.61, 141.62, and 141.71, which deal with claims against TCADA. However, these sections have been renumbered.

Thomas F. Best, General Counsel, has determined that there will be no significant fiscal impact for state or local government for the first five-year period the new rules are in effect.

The Commission does not anticipate that the adoption of the new rules will have a significant effect on small businesses or a significant economic cost to current licensees.

Mr. Best has also determined that for each year of the first five years the new rules are in effect the anticipated public benefit will be more efficient use of resources, reduced administrative and regulatory burden on regulated entities, and greater clarity regarding expectations TCADA has for individuals and organizations providing substance abuse services in Texas. The resulting increased concentration on quality of care issues and service outcomes results will benefit all recipients of services and the general public.

Comments on the proposal may be submitted to Albert Ruiz, Texas Commission on Alcohol and Drug Abuse, P.O. Box 80529, Austin, Texas 78708-0529. Comments may also be submitted electronically to rules.revisions@tcada.state.tx.us or faxed to (512) 821-4418. All comments must be received by October 15, 2003.

To ensure consideration, comments must clearly specify the particular section of the rule to which they apply. General comments should be labeled as such. Comments should include proposed alternative language as appropriate.

Subchapter A. DEFINITIONS

40 TAC §141.101

The new rule is proposed under the Texas Health and Safety Code, §461.012(a)(15) which provides TCADA with the authority to adopt rules governing its functions, including rules that prescribe the policies and procedures it follows in administering any Commission programs and §461.0141 which provides TCADA with authority to adopt rules regarding purchase of services. The new rules are also proposed under Texas Health and Safety Code §461.0128 which provides that the Commission shall develop model program standards for substance abuse services for use by each state agency that provides or pays for substance abuse services. The new rule is also proposed under Texas Health and Safety Code, §464.009, which provides TCADA with the authority to adopt rules and standards for the licensure of chemical dependency treatment facilities.

The code affected by the proposed new rule is the Texas Health and Safety Code, Chapters 461 and 464.

§141.101.Definitions.

The following words and terms, when used in Chapters 141, 142, 144, 147, 148, 150, and 153 of this title shall have the following meanings, unless the context clearly indicates otherwise:

(1) Abuse--An intentional, knowing, or reckless act or omission by provider personnel, a counselor, applicant for counselor licensure, or counselor intern that causes or may cause death, emotional harm or physical injury to a participant or client. Abuse includes without limitation the following:

(A) any sexual activity between provider personnel, a counselor, applicant for counselor licensure, or counselor intern and a participant or client;

(B) corporal punishment;

(D) efforts to cause fear;

(E) the use of any form of communication to threaten, curse, shame, or degrade a participant or client;

(F) restraint that does not conform with Chapter 148 of this title (relating to Standard of Care);

(G) coercive or restrictive actions taken in response to a participant or client's request for discharge or refusal of medication or treatment that are illegal or not justified by the participant or client's condition; and

(H) any other act or omission classified as abuse by Texas law, including but not limited to, TEX. FAMILY CODE ANN. §261.001 (Vernon 1996) and TEX. HUM. RES. CODE ANN. §48.002 (Vernon Supp. 2003).

(2) Administrative Discharge--A discharge report processed by the Commission for a client whose last admission date and/or last billing end date exceeds 50 days.

(3) Administrative Follow-up--A report processed by the Commission if 90 days for non-detoxification clients or 40 days for detoxification clients have elapsed from the client's last discharge date and the client has not been readmitted to the same provider within 60 days (non-detoxification clients) or ten days (detoxification clients).

(4) Administrative Hearing--An appeals hearing conducted by the State Office of Administrative Hearings (SOAH).

(5) Administrative Law Judge (ALJ)--An individual appointed by the chief administrative law judge of SOAH under TEX. GOV'T CODE ANN. §2003.041 (Vernon 2000) to preside over a contested case proceeding.

(6) Administrative Procedure Act (APA)--TEX. GOV'T CODE ANN. ch. 2001 (Vernon 2000), as amended.

(7) Adolescent--An individual 13 through 17 years of age whose disabilities of minority have not been removed by marriage or judicial decree.

(8) Adult--An individual 18 years of age or older, or an individual under the age of 18 whose disabilities of minority have been removed by marriage or judicial decree.

(9) Advanced Practice Nurse--A registered nurse currently licensed in Texas who is approved by the Texas State Board of Nurse Examiners to engage in advanced practice.

(10) Agency--TCADA.

(11) Alternative Activities--A strategy that gives participants and their families the opportunity to take part in educational, cultural, recreational, skill-building, and work-oriented substance-free activities. Activities under this strategy are designed to encourage and foster bonding with peers, family and community.

(12) Applicant--A person who has submitted an application for an initial license to provide chemical dependency counseling or treatment, renewal of a license, or certification or approval for provision of an offender education program. For funding purposes, an applicant is a person who has submitted a proposal or application to provide substance abuse services in response to a solicitation issued by the Commission.

(13) Assessment--An ongoing process through which the counselor collaborates with the client and others to gather and interpret information necessary for developing and revising a treatment plan and evaluating client progress toward achievement of goals identified in the treatment plan, resulting in comprehensive identification of the client's strengths, weaknesses, and problems/needs.

(14) ATOD--Alcohol, tobacco and other drugs collectively.

(15) Authorized Representative--An attorney authorized to practice law in the State of Texas or, if authorized by applicable law, a person designated in writing by a party to represent the party.

(16) Behavioral Health Integrated Provider System (BHIPS)--The Commission's Internet-based computer system for contracted service providers that offers contractors the tools to meet State and Federal requirements for reporting, including capturing required client and billing data.

(17) Block Grant--Substance Abuse Prevention and Treatment Block Grant, 42 U.S.C. 300x-21, et seq.

(18) Brief Interventions--Practices designed to initiate a resolution of a problem and motivate an individual to begin to do something about his or her substance abuse. Brief interventions are described in "Brief Interventions and Brief Therapies for Substance Abuse" (Treatment Improvement Protocol 34), published by the United States Department of Health and Human Services Center for Substance Abuse Treatment (CSAT).

(19) Brief Therapy--A systematic, focused process that relies on client engagement, and rapid implementation of change strategies. Brief therapies are described in "Brief Interventions and Brief Therapies for Substance Abuse" (Treatment Improvement Protocol 34), published by CSAT.

(20) Business Day--A weekday on which State offices are open.

(21) Center for Substance Abuse Prevention (CSAP) Prevention Strategies--

(A) Community-Based Process--A strategy designed to enhance the ability of the community to provide effective prevention, intervention, and treatment services for ATOD problems and HIV infection through community mobilization and empowerment. Activities include multi-agency coordination and collaboration, networking, and development of written agreements among community organizations.

(B) Environmental and Social Policy--A strategy designed to establish or change written and unwritten community standards, codes, and attitudes, thereby influencing incidence and prevalence of substance abuse in the general population. It includes activities that center on legal and regulatory initiatives and those that relate to the service and action-oriented initiatives.

(C) Information Dissemination--A strategy that provides awareness and knowledge of ATOD problems and/or HIV infection and their harmful effects on individuals, families, and communities. It also gives the general population information about available programs and services. Information dissemination is characterized by one-way communication from the source to the audience, with limited contact between the two. Information is disseminated through written communications and/or in-person community presentations.

(D) Prevention Education and Skills Training--A curriculum-based strategy designed to develop decision-making, problem solving, and other life skills. It also provides accurate information about the harmful effects of ATOD use, abuse and addiction pertinent to the needs of the target population. The basis of activities under this strategy is interaction between the educator/facilitator and the participants. These activities are aimed to increase protective factors, foster resiliency, decrease risk factors and affect critical life and social skills relative to substance abuse and/or HIV risk of the participant and/or family members.

(E) Problem Identification and Referral--A strategy that provides services designed to ensure access to appropriate levels and types of services needed by youth or adult participants.

(F) Alternative Activities--A strategy that gives participants and their families the opportunity to take part in educational, cultural, recreational, skill-building, and work-oriented substance-free activities. Activities under this strategy are designed to encourage and foster bonding with peers, family and community.

(22) Chemical Dependency--In addition to the statutory provisions defining chemical dependency as abuse of, dependence on, or addiction to alcohol or a controlled substance (as defined by TEX. HEALTH & SAFETY CODE ch. 481 (Vernon 2001) and related statutory provisions in TEX. HEALTH & SAFETY CODE ch. 461, 464 (Vernon 2001), the Commission also defines chemical dependency as substance-related disorders as that term is used in the most recent published edition of the Diagnostic and Statistical Manual of Mental Disorders (See DSM).

(23) Chemical Dependency Counseling--See Practice of Chemical Dependency Counseling.

(24) Chemical Dependency Counselor--See Licensed Chemical Dependency Counselor (LCDC).

(25) Chemical Dependency Counselor Intern--A person registered with the Commission who is pursuing a course of training in chemical dependency counseling at a registered clinical training institution.

(26) Chemical Dependency Treatment--A planned, structured, and organized chemical dependency program designed to initiate and promote a person's chemical-free status or to maintain the person free of illegal drugs. It includes, but is not limited to, the application of planned procedures to identify and change patterns of behavior related to or resulting from substance-related disorders that are maladaptive, destructive, or injurious to health, or to restore appropriate levels of physical, psychological, or social functioning.

(27) Child--For purposes of reporting abuse and neglect, a child is an individual under the age of 18 whose disabilities of minority have not been removed by marriage or judicial decree. For all other purposes in these rules, child shall mean an individual under the age of 13.

(28) Child Abuse and Neglect--Any act or omission that constitutes abuse or neglect of a child under the age of 18 by a person responsible for a child's care, custody, or welfare as defined in the TEX. FAM. CODE §261.001 (Vernon 1996).

(29) Client--An individual who receives or has received services, including admission authorization or assessment or referral, from a chemical dependency treatment provider, counselor, counselor intern, or applicant for licensure as a counselor, or from an organization where the counselor, intern or applicant is working on a paid or voluntary basis.

(30) Client Data Systems (CDS) Forms--CDS forms consist of the admission/transfer admission report, discharge report, and follow-up report.

(31) Clinical Evaluation--A systematic approach to screening and assessment.

(32) Clinical Training Institution (CTI)--An individual or legal entity registered with the Commission to supervise a counselor intern.

(33) Cognizant Agency--The Federal or State agency responsible for reviewing, negotiating, and approving an organization's indirect cost rate. TCADA has not been designated as a cognizant agency.

(34) Commission--Texas Commission on Alcohol and Drug Abuse and its branches, divisions, departments, and employees.

(35) Consenter--The individual legally responsible for giving informed consent for a client. Unless otherwise provided by law, a legally competent adult is his or her own consenter and the consenter for an adolescent or child is the parent, guardian, or conservator. Texas law allows a person 16 or 17 years of age to consent to his or her own treatment.

(36) Contested Case--A proceeding, including but not restricted to licensing, in which the legal rights, duties, or privileges of a party are to be determined by the Commission after an opportunity for adjudicative hearing.

(37) Contractor--Person funded by the Commission to provide substance abuse services unless otherwise specified.

(38) Cost Reimbursement--A payment mechanism used for prevention and intervention services in which funds are provided to carry out approved activities based on an approved budget.

(39) Counseling--A collaborative process that facilitates the client's progress toward mutually determined treatment goals and objectives. Counseling includes methods that are sensitive to individual client characteristics and to the influence of significant others, as well as the client's cultural and social context. Competence in counseling is built upon the understanding of, appreciation of, and ability to appropriately use the modalities of care for individuals, groups, families, couples, and significant others.

(40) Counselor--A qualified credentialed counselor.

(41) Crisis Intervention--Actions designed to intervene in situations which require immediate attention to avert potential harm to self or others. Services include face-to-face individual, family, or group interviews/interactions and/or telephone contacts to identify needs.

(42) Days--Calendar days, unless otherwise specified.

(43) Digital Authentication Key--Identification data (that includes user identification and a time stamp) that is digitally stamped on electronic documents identifying the specific user that created the document. The identification data shall be controlled by a unique user ID and an encrypted password.

(44) Direct Care Staff--Staff responsible for providing treatment, care, supervision, or other direct client services that involve face-to-face contact with a client.

(45) Discharge--Formal, documented termination of services.

(46) Document (noun)--A written or electronic record.

(47) Diagnostic and Statistical Manual of Mental Disorders (DSM)--The Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association. The current version is the Fourth Edition. Any reference to DSM shall constitute a reference to the most recent edition then published.

(48) Driving While Intoxicated (DWI)--The offense of driving while intoxicated as defined in the TEX. PEN. CODE ANN. ch. 49 (Vernon 2003).

(49) Elderly--A person 65 years of age or older.

(50) Emergency Behavioral Health Condition--Any condition, without regard to the nature or cause of the condition, which in the opinion of a prudent lay person possessing an average knowledge of medicine and health, requires immediate intervention and/or medical attention without which an individual would present a danger to themselves or others or which renders individuals incapable of controlling, knowing or understanding the consequences of their actions.

(51) Encryption--A method that allows secure transmittal of information along the Internet by encoding the transmitted data using a mathematical formula that scrambles the data. Without a corresponding "decoder," the transmission would be unusable.

(52) Executive Director--The chief administrative officer or designee of the Texas Commission on Alcohol and Drug Abuse.

(53) Exploitation--The illegal or improper use of a client or participant, or their resources, for monetary or personal benefit, profit, or gain by provider personnel, a staff member, volunteer, or other individual working under the auspices of a provider or by a counselor, counselor intern or applicant for counselor licensure or any other act or omission classified as exploitation by Texas law including, but not limited to, TEX. FAM. CODE §261.001 (Vernon 1996) and TEX. HUM. RES. CODE §48.002 (Vernon Supp. 2003).

(54) Facility--See Treatment Facility.

(55) Family--The children, parents, brothers, sisters, other relatives, foster parents, guardians, and/or significant others who perform the roles and functions of family members in the lives of clients or participants.

(56) Fiscal Year--The Commission's fiscal year, September 1 - August 31, unless otherwise specified.

(57) Gender Specific--Therapy, education and/or program components that are designed to address emotional, developmental, rehabilitative, health and/or other issues that are specific to the gender of the client.

(58) Graduate--An individual who has successfully completed the 270 hours of education, 300 hour practicum, and 4,000 hours of supervised work experience and who is still registered with the Commission as a counselor intern.

(59) Health Insurance Portability and Accountability Act of 1996 (HIPAA)--Pub. L. No. 104-191, 45 C.F.R. pts. 160 and 164.

(60) Human Immunodeficiency Virus (HIV)--The virus that causes Acquired Immune Deficiency Syndrome (AIDS). Infection is determined through a testing and counseling process overseen by the Texas Department of Health (TDH). Being infected with HIV is not necessarily equated with having a diagnosis of AIDS, which can only be diagnosed by a physician using criteria established by the National Centers for Disease Control and Prevention.

(61) HIV Antibody Counseling and Testing--A structured counseling session performed by Prevention Counseling and Partner Elicitation (PCPE) counselors registered with TDH. It promotes risk reduction behavior for those at risk of infection with HIV and other sexually transmitted diseases and offers testing for HIV infection.

(62) HIV Early Intervention Services--

(A) appropriate pretest counseling for HIV and AIDS;

(B) testing individuals with respect to such disease, including tests to confirm the presence of the disease, tests to diagnose the extent of the deficiency in the immune system, and tests to provide information on appropriate therapeutic measures for preventing and treating the deterioration of the immune system and for preventing and treating conditions arising from the disease;

(D) providing the therapeutic measures described in subparagraph (B) of this paragraph.

(63) Indicated Population--The population who may already be experimenting with drugs or who exhibit other problem-related behaviors.

(64) Individual Service Day--A day on which a specific client receives services.

(65) Intake--The process for gathering information about a prospective client and giving a prospective client information about treatment and services.

(66) Intervention--The interruption of the onset or progression of chemical dependency in the early stages. Intervention strategies target indicated populations.

(67) Intervention Counseling--Interactions to assist individuals, families, and groups to identify, understand, and resolve issues and problems related to ATOD use within a specific number of sessions or within a certain time frame. It is intended to intervene in problem situations and high-risk behaviors, which, if not addressed, may escalate to substance abuse or cause communicable disease. Such interactions should not include determining whether a person is in need of treatment. The use of the term "counseling" does not carry the same meaning as defined in paragraph (38) of this section.

(68) Key Performance Measures--Measures that reflect the services that are critical to the program design and intended outcomes of the program. Key performance measures are specified for all Commission-funded programs.

(69) Knowledge, Skills, and Attitudes (KSAs)--The knowledge, skills, and attitudes of addictions counseling as defined by CSAT Technical Assistance Publication (TAP 21) "Addictions Counseling Competencies: the Knowledge, Skills, and Attitudes of Professional Practice."

(70) License--The whole or part of any agency permit, certificate, approval, registration, or similar form of permission authorized by law.

(71) Licensed Chemical Dependency Counselor (LCDC)--A counselor licensed by the Texas Commission on Alcohol and Drug Abuse pursuant to TEX. OCC. CODE ch. 504 (Vernon 2002).

(72) Licensed Health Professional--A physician, physician assistant, advanced practice nurse, registered nurse, or licensed vocational nurse authorized to practice in the State of Texas.

(73) Licensee--Any individual or person to whom the agency has issued any permit, certificate, approved registration, or similar form of permission authorized by law.

(74) Licensing--The agency process relating to the granting, denial, renewal, revocation, suspension, annulment, withdrawal, or amendment of a license.

(75) Life Skills Training (Treatment)--A structured program of training, based upon a written curriculum and provided by qualified staff designed to help clients with social competencies such as communication and social interaction, stress management, problem solving, decision making, and management of daily responsibilities.

(76) Mechanical Restraint--

(A) The application of a device restricting the movement of the whole or a portion of an individual's body to control physical activity. Only commercially available devices specifically designed for the safe and comfortable restraint of humans may be used as mechanical restraints.

(B) Despite their commercial availability, the following types of devices may not be used to implement restraint:

(i) those with metal wrist or ankle cuffs;

(ii) those with rubber bands, rope, cord, or padlocks or key locks as fastening devices;

(iii) long ties (e.g., leashes); or

(iv) bed sheets.

(i) Anklets--A cloth or leather band fastened around the ankle or leg and secured to a stationary object (e.g., bed or chair frame). Acceptable fasteners include Velcro and buckles. The device must not be secured so tightly as to interfere with vital functions, including circulation, or so loose as to permit chafing of the skin. Padding on the inside of the device, which aids in preventing chafing, is required.

(ii) Belts--A cloth or leather band fastened around the waist. The belt may either be attached to a stationary object (e.g., chair frame) or used for securing the arms to the sides of the body. The device must not be secured so tightly as to interfere with vital functions, including breathing and circulation.

(iii) Chair restraint--A well-padded stabilized chair that supports all body parts and prevents the individual's voluntary egress from the chair without assistance (e.g., table top chair, Geri-chair). Mechanical restraint devices (e.g., wristlets, anklets) are attached or may be easily attached to restrict movement. The devices must not be secured so tightly as to interfere with vital functions, including breathing and circulation.

(iv) Ties--A length of cloth or leather used to secure approved mechanical restraints (i.e., mittens, wristlets, arm splints, belts, anklets, vests, etc.) to a stationary object (i.e., bed or wheelchair frame) or to other approved mechanical restraints. Ties must not be secured so tightly as to interfere with vital functions, including breathing and circulation.

(v) Wristlets--A cloth or leather band fastened around the wrist or arm and secured to a stationary object (e.g., bed or chair frame, waist belt). Acceptable fasteners include Velcro and buckles. The device must not be secured so tightly as to interfere with vital functions, including circulation or so loose as to permit chafing of the skin. Padding on the inside of the device, which aids in preventing chafing, is required.

(77) Medication Error--Medication not given according to the written order by the prescribing professional or as recommended on the medication label. Medication errors include without limitation, duplicate doses, missed doses, and doses of the wrong amount or drug.

(78) Minor--A person under the age of 18.

(79) Neglect--A negligent act or omission by provider personnel, a staff member, volunteer, or other individual working under the auspices of a provider, or by a counselor, applicant for counselor licensure, or counselor intern that causes or may cause death, physical injury, or substantial emotional harm to a participant or client. Examples of neglect include, but are not limited to:

(A) failure to provide adequate nutrition, clothing, or health care;

(B) failure to provide a safe environment free from abuse;

(D) failure to establish or carry out an appropriate individualized treatment plan; and

(E) any other act or omission classified as neglect by the Texas law including, but not limited to, TEX. FAM. CODE §261.001 (Vernon 1996) and TEX. HUM. RES. CODE §48.002 (Vernon Supp. 2003).

(80) Offender Education Program--An Alcohol Education Program for Minors, Drug Offender Education Program, DWI Education Program, or DWI Intervention Program approved by the Commission under Chapter 153 of this title (relating to Offender Education Programs).

(81) OMB--United States Office of Management and Budget.

(82) On Duty--Present, ready, awake and able to perform job duties at the physical locations where services are provided.

(83) Outcome--The results of a service on clients or participants or the service delivery system itself.

(84) Outreach--Activities directed toward finding individuals who might not use services due to lack of awareness or active avoidance.

(85) Participant--An individual who is receiving prevention or intervention services.

(86) Party--A person or agency formally named or admitted as a party.

(87) Person--An individual, corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, or any other legal entity.

(88) Personal Restraint--Physical contact to control or restrict an individual's physical movement or actions. See also Mechanical Restraint.

(89) Personnel--The members of the governing body of a provider and, without limitation, its staff, employees, contractors, consultants, agents, representatives, volunteers, or other individuals working for or on behalf of the provider through a formal or informal agreement.

(90) Pleading--A written document submitted by a party, or a person seeking to participate in a case as a party, which requests procedural or substantive relief, makes claims, alleges facts, makes legal argument, or otherwise addresses matters involved in the case.

(91) Practice of Chemical Dependency Counseling Services--Providing or offering to provide chemical dependency counseling services involving the application of the principles, methods, and procedures of the chemical dependency counseling profession as defined by the activities listed in the domains of TAP 21 "Addictions Counseling Competencies: the Knowledge, Skills, and Attitudes of Professional Practice" published by CSAT.

(92) Prevention-A proactive process that uses multiple strategies to preclude the illegal use of alcohol, tobacco and other drugs and to foster safe, healthy, drug-free environments.

(93) Private Practice--The individual practice of a private, licensed health care practitioner who personally renders individual or group services within the scope of the practitioner's license and in the practitioner's offices. To qualify to be engaged in private practice, the individual licensed health care practitioner must not hold him/herself out as an organized program, or a part thereof, that provides counseling or treatment. This definition does not prohibit the sharing of office space or administrative support staff.

(94) Program--A specific type of service delivered to a specific population, at a specific location.

(95) Proprietary School--An organization approved and regulated by the Texas Workforce Commission under 40 TAC Chapter 807 (2003) (relating to Proprietary Schools) that offers a course of study in chemical dependency counseling.

(96) Protective Factors--Characteristics within individuals and social systems which may inoculate or protect persons against risk factors and strengthen their determination to reject or avoid substance abuse.

(97) Provider--A person that performs or offers to perform substance abuse services. The term includes but is not limited to, a qualified credentialed counselor, applicant for counselor licensure, and counselor intern.

(98) Qualified Credentialed Counselor (QCC)--A licensed chemical dependency counselor or one of the practitioners listed below who is licensed and in good standing in the State of Texas and has at least 1,000 hours of documented experience treating substance-related disorders:

(A) licensed professional counselor (LPC);

(B) licensed master social worker (LMSW);

(D) licensed psychologist;

(E) licensed physician;

(F) licensed physician's assistant;

(G) certified addictions registered nurse (CARN); or

(H) advanced practice nurse recognized by the Board of Nurse Examiners as a clinical nurse specialist or nurse practitioner with a specialty in psych-mental health (APN-P/MH).

(99) Qualified Mental Health Professional--A qualified mental health professional as defined in the 25 TAC §401.583(15) (2003).

(100) Recovery Maintenance--A level of treatment designed to maintain and support a client's continued recovery.

(101) Referral--The process of identifying appropriate services and providing the information and assistance needed to access them.

(102) Residential Site--A physical location owned, leased, or operated by a provider where clients reside in a supervised treatment environment.

(103) Respondent--A person against whom the Commission seeks an administrative, civil or criminal remedy for non-compliance with law and rules governing substance abuse services.

(104) Restraint--See Personal and Mechanical Restraint.

(105) Retaliate--Actions taken to punish or discourage a person, including a participant or client, who reports a violation of these rules or cooperates with an investigation, inspection, or intimidation proceeding by the Commission. Such actions include, but are not limited to, suspension or termination of employment, demotion, discharge, transfer, discipline, abuse, neglect, restriction of privileges, harassment, or discrimination.

(106) Risk Factor--A characteristic or attribute of an individual, group, or environment associated with an increased probability of certain disorders, addictive diseases, or behaviors.

(107) Risk Management--The process of identifying, evaluating and taking steps to minimize the risk associated with any activity, function, or process.

(108) Rules--An agency statement of general applicability that implements, or prescribes law or policy by defining general standards of conduct, rights, or obligations of persons, or describes the procedure or practice requirements that prescribe the manner in which public business before an agency may be initiated, scheduled, or conducted, or interprets or clarifies law or agency policy. The term includes the amendment or repeal of a prior rule but does not include statements concerning only the internal management or organization of the agency and does not affect private rights or procedures. This definition includes regulations. Any reference to the rules herein shall mean Commission rules currently in effect unless otherwise specified.

(109) Screening--The process through which a qualified staff, client or participant, and available significant others determine the most appropriate initial course of action, given the individual's needs and characteristics and the available resources within the community. In a treatment program, screening includes determining whether an individual is appropriate and eligible for admission to a particular program.

(110) Seclusion--Confinement of an individual for a period of time in a hazard-free room or other area in which direct observation can be maintained and from which egress is prevented.

(111) Selective Program--A prevention program designed to target subsets of the total population that are deemed to be at higher risk for substance abuse by virtue of membership in a particular population segment. Risk groups may be identified on the basis of biological, psychological, social or environmental risk factors, and targeted groups may be defined by age, gender, family history, place of residence, or victimization by physical and/or sexual abuse. Selective prevention programs target the entire subgroup regardless of the degree of individual risk.

(112) Services--Substance abuse services.

(113) Service Coordination--Administrative, clinical, and evaluative activities that bring the client, treatment services, community agencies, and other resources together to focus on issues and needs identified in the treatment plan. Service coordination, which includes care management and client advocacy, establishes a framework of action for the client to achieve specified goals. It involves collaboration with the client and significant others, coordination of treatment and referral services, liaison activities with community resources and managed care systems, client advocacy, and ongoing evaluation of treatment progress and client needs.

(114) Sexual Exploitation--A pattern, practice, or scheme of conduct by provider personnel or other individual working under the auspices of a provider, or by a counselor, intern, or applicant that involves a client or participant and can reasonably be construed as being for the purpose of sexual arousal or gratification or sexual abuse. It may include sexual contact, a request for sexual contact, or a representation that sexual contact or exploitation is consistent with, a part of or, a condition of receiving services. It is not a defense to sexual exploitation of a client, or participant if it occurs:

(A) with consent of the client or participant;

(B) outside of the delivery of services; or

(D) after the client or participant is no longer receiving services, unless it occurred two years after the client or participant stopped receiving services.

(115) Signature--Authentication of a record that meets the criteria established in §148.507 of this title (relating to General Documentation Requirements).

(116) Staff--Individuals working for a person in exchange for money or other compensation.

(117) State Office of Administrative Hearings (SOAH)--The agency to which contested cases are referred by the Commission.

(118) Substance Abuse--A maladaptive pattern of substance use leading to clinically significant impairment or distress, as defined by the most recently published version of the DSM.

(119) Substance Abuse Education--A planned, structured presentation of information provided by qualified staff, which is related to substance abuse or substance dependence, allows for discussion of the material presented and is relevant to the client or participant's goals.

(120) Substance Abuse Services (Services)--A comprehensive term intended to describe activities undertaken to address any substance-related disorder as well as prevention activities. The term includes the provision of screening, assessment, referral, treatment for chemical dependency and chemical dependency counseling.

(121) Substance-Related Disorders--Defined by the most recently published version of the DSM.

(122) TCADA--Texas Commission on Alcohol and Drug Abuse

(123) Texas Public Information Act--TEX. GOV'T CODE ANN. ch. 552 (Vernon 2000).

(124) Therapeutic Services for Women--Education, services and/or therapy to address: parenting, reproductive and general health, self-esteem, physical and sexual abuse, mental health, child development and self-sufficiency.

(125) Toxic Inhalant--A gaseous substance that is inhaled by a person to produce a desired physical or psychological effect and that may cause personal injury or illness to the inhaler.

(126) Treatment--See Chemical Dependency Treatment.

(127) Treatment Facility--

(A) a public or private hospital;

(B) a detoxification facility;

(D) an intensive care facility;

(E) a long-term care facility;

(F) an outpatient care facility;

(G) a community mental health center;

(H) a health maintenance organization;

(I) a recovery center;

(J) a halfway house;

(K) an ambulatory care facility; or

(L) any other facility that offers or purports to offer treatment.

(128) Treatment Planning--A collaborative process through which the provider and client develop desired treatment outcomes and identify the strategies for achieving them. At a minimum, the treatment plan addresses the identified substance use disorder(s), as well as issues related to treatment progress, including relationships with family and significant others, employment, education, spirituality, health concerns, and legal needs.

(129) Unethical Conduct--Conduct prohibited by the ethical standards adopted by state or national professional organizations or by rules established by a profession's state licensing agency.

(130) Unit Rate--A payment mechanism in which a specified rate of payment is made in exchange for a specified unit of service.

(131) Universal Population--Universal prevention programs are delivered to large groups without any prior screening for substance abuse risk. A prevention program designed to address an entire population with messages and programs aimed at preventing or delaying the use and abuse of alcohol, tobacco, and other drugs.

(132) Utilization Review--The process of evaluating the necessity, appropriateness and efficiency of the use of chemical dependency treatment services, procedures and facilities.

(133) Youth--Individuals between the ages of 13 through 17. See also Young Adult in Chapters 147 and 148 of this title (relating to Contract Program Requirements and Standard of Care).

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 18, 2003.

TRD-200305312

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Subchapter B. CLAIMS AGAINST THE COMMISSION

40 TAC §§141.201 - 141.205

The new rules are proposed under the Texas Health and Safety Code, §461.012(a)(15) which provides TCADA with the authority to adopt rules governing its functions, including rules that prescribe the policies and procedures it follows in administering any Commission programs and §461.0141 which provides TCADA with authority to adopt rules regarding purchase of services. The new rules are also proposed under Texas Health and Safety Code §461.0128 which provides that the Commission shall develop model program standards for substance abuse services for use by each state agency that provides or pays for substance abuse services. The new rules are also proposed under Texas Health and Safety Code, §464.009, which provides TCADA with the authority to adopt rules and standards for the licensure of chemical dependency treatment facilities.

The code affected by the new rules are Chapters 461 and 464 of the Texas Health and Safety Code.

§141.201.Notice of Claim.

(a) For purposes of this Subchapter, the term contractor shall also have the meaning given that term in TEX. GOV'T CODE ANN. ch. 2260 (Vernon 2000).

(b) To file a claim of breach of contract under TEX. GOV'T CODE ANN. ch. 2260 (Vernon 2000), the contractor must deliver written notice of the claim to the Commission's executive director.

(c) The notice must be signed by the contractor's authorized representative and delivered by hand, certified mail return receipt requested, or other verifiable delivery service.

(d) The claim must specifically describe:

(1) the nature of the alleged breach of contract, including the date of the event which forms the basis of the claim and the contract provision(s) breached;

(2) the damages claimed, including the amount and the method used to calculate them; and

(3) the legal basis for filing the claim, including the relationship between the alleged breach and the damages claimed.

(e) The contractor must submit supporting documentation with the notice of claim.

(f) The notice must be delivered no later than 180 days after the date of the event that forms the basis of the claim.

(g) Any amount(s) owed by the contractor shall be deducted from the total damages claimed. This includes amounts owed for work not performed or work not performed in substantial compliance with the terms of the contract. The total amount of damages (after deduction of amount owed by contractor) may not exceed the contracted amount or include consequential or similar damages, exemplary damages, any damages based on an unjust enrichment theory, attorney's fees or home office overhead.

§141.202.Agency Counterclaim.

(a) The Commission may file a counterclaim of breach of contract.

(b) Written notice of counterclaim must be delivered to the authorized representative of the contractor who signed the notice of claim of breach of contract.

(d) The notice must specifically describe:

(1) the nature of the counterclaim;

(2) the damages or offsets, including the amount and the method used to calculate them; and

(3) the legal theory supporting the counterclaim.

(e) The notice of counterclaim must be delivered to the contractor no later than 90 calendar days after receipt of notice of the claim.

§141.203.Timetable for Negotiations and Contested Case Hearings.

(a) The Commission's executive director must examine the contractor's claim and the Commission's counterclaim, if any, and initiate negotiations.

(b) Except as provided in subsection (c) of this section, negotiations shall begin no more than 60 calendar days following the latest of:

(1) the date of termination of the contract;

(2) the completion date in the original contract; or

(3) the date the notice of claim of breach of contract is received by the Commission.

(c) The Commission may delay the negotiations until the 181st calendar day after the date of the event giving rise to the claim of breach of contract. The Commission shall give the contractor written notice of the delay and notify the contractor when it is ready to begin negotiations.

(d) The parties must complete the negotiations as a prerequisite to a contested case hearing no later than 270 days after the Commission receives the notice of claim of breach of contract. The negotiation period may be extended through a written agreement signed by the authorized representatives of each party.

(e) The parties may agree to mediate the dispute at any time before the 270th day after the Commission receives the notice of claim of breach of contract, or before the expiration of any extension agreed to in writing by the parties.

(f) If negotiations fail to resolve the dispute, the case may be submitted to the State Office of Administrative Hearings (SOAH).

(1) The contractor may file a request for contested case hearing with the Commission if a complete settlement agreement has not been reached 270 calendar days after the date the claim is delivered to the Commission, or after the expiration of any extension agreed to in writing by the parties.

(2) The parties may agree to submit the case to SOAH before the 270th day if they have reached a partial settlement or if an impasse has been reached in the negotiations and proceeding to a contested case hearing would serve the interests of justice.

(3) The parties may continue to negotiate or mediate after a request for contested case hearing is referred to the SOAH.

§141.204.Conduct of Negotiations.

(a) Any limitations on the settlement authority of the representatives participating in the negotiations must be disclosed by the parties as soon as possible. To the extent possible, the parties shall select negotiators who are knowledgeable about the dispute and who are in a position to reach agreement or can credibly recommend approval of an agreement.

(b) Negotiation may be conducted by any method, technique, or procedure authorized under the contract or agreed upon by the parties. The contractor and the Commission may conduct negotiations with the assistance of one or more neutral third parties.

(d) To facilitate meaningful negotiation, the parties must exchange relevant documentation that supports their claims, defenses, counterclaims or positions.

(e) Any settlement reached during the negotiation must be put in writing and signed by representatives of the contractor and the Commission. The agreement must describe any procedures that must be followed to secure final approval.

(f) The final settlement must be documented in writing and signed by representatives of the contractor and the Commission with authority to bind the respective party. If the settlement does not resolve all issues raised by the claim and counterclaim, the agreement must specifically identify the issues that are not resolved.

(g) Unless the contractor and the Commission agree otherwise, each party shall be responsible for its own costs.

§141.205.Mediation.

(a) The contractor and the Commission may agree to mediate a claim through an impartial third party. Mediation is a forum in which an impartial person facilitates communication between parties to promote reconciliation, settlement, or understanding, but does not impose his own judgment on the issues.

(b) The mediation shall be governed by the provisions of the Governmental Dispute Resolution Act, TEX. GOV'T CODE ANN. ch. 2009 (2003).

(c) The Commission and the contractor shall select an impartial third party that is acceptable to both. The impartial third party must:

(1) possess the qualifications required under TEX. CIV. PRAC. & REM. CODE ANN. §154.052 (Vernon 1997);

(2) be subject to the standards and duties prescribed by TEX. CIV. PRAC. & REM. CODE ANN. §154.053 (Vernon 1997); and

(3) have the qualified immunity prescribed by TEX. CIV. PRAC. & REM. CODE ANN. §154.055 (Vernon 1997), if applicable.

(d) A mediation conducted under this section is confidential in accordance with TEX. GOV'T CODE ANN. §2009.054 (Vernon 2000).

(e) A final settlement agreement signed by the Commission under this section is subject to or excepted from required disclosure in accordance with TEX. GOV'T CODE ANN. ch. 552 (Vernon 2000).

(f) Unless the contractor and the Commission agree otherwise, the costs of the mediator shall be divided equally between the parties and each party shall be responsible for its own costs.

(g) Any limitations on the settlement authority of the representatives participating in the negotiations must be disclosed by the parties before mediation begins.

(h) Any settlement reached during the mediation must be put in writing and signed by representatives of the contractor and the Commission. The agreement must describe any procedures that must be followed to secure final approval.

(i) The final settlement must be documented in writing and signed by representatives of the contractor and the Commission with authority to bind the respective party. If the settlement does not resolve all issues raised by the claim and counterclaim, the agreement must specifically identify the issues that are not resolved.

(j) If mediation does not resolve the claim to the satisfaction of the contractor, the contractor may file a request that the claim be referred to SOAH pursuant to TEX. GOV'T CODE ANN. ch. 2260 (Vernon 2000). The request for referral must be filed according to the timetable described in §141.203 of this title (relating to Timetables for Negotiations and Contested Case Hearings).

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 18, 2003.

TRD-200305311

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Subchapter C. PROCUREMENT

40 TAC §141.301, §141.302

The code affected by the new rules are Chapters 461 and 464 of the Texas Health and Safety Code.

§141.301.Procurement.

(a) The Commission shall procure all goods and services in compliance with 1 TAC Chapter 391 (2003).

(1) Procurements will be classified as either formal or informal, based on the estimated dollar value of the transaction. Dollar thresholds will be established in Commission policies and procedures, and the methodology will be reviewed annually.

(2) The Commission may use a waiver process as defined in 1 TAC Chapter 391 (2003) for procurements below $100,000. The waiver process may be used in the presence of unique circumstances related to that procurement action. All waivers will be approved by the executive director.

(3) Procurement of prevention, intervention, treatment and related support services shall be conducted as described in Chapter 144 of this title (relating to Contract Administrative Requirements).

(b) The Commission requires compliance with the Historically Underutilized Businesses rules published by the Texas Building and Procurement Commission in 1 TAC Chapter 111 (2003).

(c) Procurement personnel, vendors, contractors, and suppliers will adhere to standards of conduct established in Commission policies and procedures. These standards shall be at least as restrictive as standards of conduct for State officers and employees under applicable State and Federal law.

§141.302.Procurement Protests.

(a) An offeror may request an informal review of a tentative purchase award if:

(1) the offeror was not selected in a competitive procurement;

(2) the procurement was a sole source or emergency procurement; or

(3) the procurement was made under an executive director waiver.

(b) The protest must be limited to issues relating to the offeror's qualifications, the suitability of the goods or services offered by the offeror, or alleged irregularities in the procurement process.

(c) A procurement review request must be submitted in writing and received by the Commission no later than 30 calendar days after the date of the award, except for protests alleging irregularities involving standards of conduct on the part of Commission employees or selected vendors, which must be received by the Commission no later than 90 calendar days after the date of the award.

(d) The protest process shall be carried out in accordance with Commission policies and procedures, which include documentation standards.

(e) A procurement protest shall not be conducted as a contested case under the Administrative Procedure Act, TEX. GOV'T CODE ANN. ch. 2001 (Vernon 2000).

(f) The Commission shall not award a contract for a protested procurement until the Commission has provided the protesting offeror with a written response. The Commission may waive this requirement for exigent circumstances or when an award required by State or Federal law must be completed by a particular 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 August 18, 2003.

TRD-200305310

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Subchapter D. MEASURING THE EFFECTIVENESS OF THE STATE'S SUBSTANCE ABUSE PREVENTION SERVICES

40 TAC §141.401

The new rule is proposed under the Texas Health and Safety Code, §461.012(a)(15) which provides TCADA with the authority to adopt rules governing its functions, including rules that prescribe the policies and procedures it follows in administering any Commission programs and §461.0141 which provides TCADA with authority to adopt rules regarding purchase of services. The new rule is also proposed under Texas Health and Safety Code §461.0128 which provides that the Commission shall develop model program standards for substance abuse services for use by each state agency that provides or pays for substance abuse services. The new rule is also proposed under Texas Health and Safety Code, §464.009, which provides TCADA with the authority to adopt rules and standards for the licensure of chemical dependency treatment facilities.

The code affected by the new rule is Chapters 461 and 464 of the Texas Health and Safety Code.

§141.401.Interagency Agreement.

(a) Texas Commission on Alcohol and Drug Abuse, Texas Juvenile Probation Commission, Texas Youth Commission and Texas Department of Protective and Regulatory Services have agreed on the following criteria as measures of a substance abuse prevention program's effectiveness. According to Acts 1999, 76th Leg., ch. 1051, §§1 - 3, all funded substance abuse prevention programs shall:

(1) target problems that are specific to a given community or school.

(A) The provider shall determine what population(s) the program is designed to serve: universal, selective or indicated.

(i) Universal programs reach the general population (such as all students in a school).

(ii) Selective programs target a subset of the general population which is at high risk for substance abuse (such as children of drug users).

(iii) Indicated programs are designed for those who may already be experimenting with drugs or who exhibit other problem-related behaviors.

(B) The program shall identify and describe the primary and secondary target populations including specific information about:

(i) age, gender, and ethnicity;

(ii) risk and protective factors;

(iii) patterns of substance use;

(iv) social and cultural characteristics;

(v) knowledge, beliefs, values, and attitudes; and,

(vi) needs.

(i) address identified risks, needs and/or problems of the primary and secondary target populations;

(ii) are designed to enhance protective factors;

(iii) clearly describe behavioral and/or societal changes to be achieved; and

(iv) are realistic in relation to available resources.

(D) The program shall establish objectives for each contract period that are linked to the goals. Objectives must be realistic, outcome oriented, measurable and time-specific.

(2) provide social services to children who have a family member with a drug addiction.

(A) The program shall identify needs that cannot be met by the program and help the participant access appropriate support systems and community resources. The program shall maintain a current list of referral resources, including other services provided by the organization.

(B) The program shall provide information, referrals and follow-up for participant and/or family needs that cannot be met by the program.

(3) use strategies that are appropriate for children and adolescents of different ages. The program design, content, communications and materials shall:

(A) be available in the primary language of the target population;

(B) be appropriate to the literacy level, gender, race, ethnicity, sexual orientation, age and developmental level of the target population; and

(4) Provide continuity in services and intervention strategies for all grade levels as stipulated in any contracts the program enters into with the agencies in this interagency agreement.

(A) The substance abuse prevention program shall be designed to build on and support other related prevention and intervention efforts in the community. The program shall secure and maintain the support of key decision makers and leaders and shall establish formal linkages and coordinate with other community resources.

(B) Each substance abuse prevention program that provides activities within this strategy shall work with other service providers, organizations, individuals and families to promote substance abuse services and improve the community's ability to prevent substance abuse and related problems.

(C) The program must use existing community services and resources effectively to enhance the substance abuse prevention program.

(D) The program must establish formal linkages with other service providers to build a continuum of substance abuse services in the community. The program shall document active participation in collaborations to support community resource development.

(E) The program shall provide information, referrals and follow-up for participant and/or family needs that cannot be met by the program.

(b) In addition, according to Acts 1999, 76th Leg., ch. 1051, §3, each agency shall require the substance abuse prevention program to submit an annual report that describes the program's effectiveness in meeting established criteria.

(1) The program shall perform self-evaluation to verify, document and quantify program activities and effectiveness.

(2) The program shall submit a written evaluation report using the format specified by the funding agency at the end of each contract period.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 18, 2003.

TRD-200305309

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Subchapter E. MISCELLANEOUS PROVISIONS

40 TAC §§141.501 - 141.503

The code affected by the new rules is Chapters 461 and 464 of the Texas Health and Safety Code.

§141.501.Public Comment and Requests.

At its public meetings, the Commission may receive public comment from any person on any issue which is not otherwise provided for by rule or procedure. The Commission may limit public comment to five minutes per person. The Commission shall maintain a list of visitors attending public meetings.

§141.502.Approval Authority.

(a) The executive director and the executive director's designees shall have authority to enter into contracts or approve vouchers for payment from funds appropriated to the Commission.

(b) The Commission members shall approve budget requests to be submitted to the legislature and shall approve the agency's budget of appropriated funds and funds from other sources.

§141.503.Training and Education.

Commission policy establishes eligibility requirements and employee obligations for training and education supported by 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 August 18, 2003.

TRD-200305308

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Chapter 142. INVESTIGATIONS AND HEARINGS

40 TAC §§142.11, 142.21, 142.31, 142.32

The Texas Commission on Alcohol and Drug Abuse (TCADA) proposes the repeal of Chapter 142, concerning Investigations and Hearings.

Sections 142.11, 142.21, 142.31, and 142.32 contain definitions and information regarding complaints and investigations, procedures for contested cases for counselor and facility licenses, and administrative.

The repeal of Chapter 142 is proposed because TCADA is adopting new rules. The new rules will be reorganized to provide a more functional and logical framework that is more closely aligned with the rules of other agencies operating under the Health and Human Services Commission and the State Office of Administrative Hearings.

Thomas F. Best, General Counsel, has determined that there will be no fiscal implications for state or local government for the first five-year period the repeal is in effect.

Mr. Best, has also determined that for each year of the first five years the repeal is in effect the anticipated public benefit will be reduced duplicative information and greater clarity regarding expectations TCADA has for individuals and organizations providing substance abuse services in Texas so that more concentration on quality of care issues and service outcomes results. There will be no effect on small businesses and there is no anticipated economic cost to current providers.

The repeal of Chapter 142 is proposed under the Texas Health and Safety Code, §461.012(a)(15) which provides TCADA with the authority to adopt rules governing its functions and Chapter 464, which provides TCADA with the authority to adopt rules and standards for the licensure of chemical dependency treatment facilities. The repeal is also proposed under Chapter 504 of the Texas Occupations Code, which provides TCADA authority to establish procedures for the licensure of chemical dependency counselors.

The codes affected by the proposed repeal are Chapters 461 and 464 of the Texas Health and Safety Code and Chapter 504 of the Texas Occupations Code.

§142.11.Definitions.

§142.21.Complaints and Investigations.

§142.31.Procedure for Contested Cases for Counselor and Facility Licenses.

§142.32.Administrative Penalties For Licensed Facilities and Counselors.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 15, 2003.

TRD-200305258

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Chapter 143. FUNDING

40 TAC §§143.1 - 143.3, 143.11 - 143.15, 143.17, 143.21, 143.22

The Texas Commission on Alcohol and Drug Abuse (TCADA) proposes the repeal of Chapter 143, concerning Funding.

Sections 143.1 - 143.3 contain information regarding the applicability of Chapter 143, allocation of funds, and service procurement plan.

Sections 143.11 - 143.15 and §§143.17, 143.21 and 143.22 pertain to TCADA's development of selection criteria for its request for proposals, application criteria, funding decisions, and alternative competition processes.

The repeal of Chapter 143 is proposed because TCADA is adopting new rules. The new rules will be reorganized to provide a more functional and logical framework and will be more closely aligned with the rules of other agencies operating under the Health and Human Services Commission.

Thomas F. Best, General Counsel, has determined that there will be no fiscal implications for state or local government for the first five-year period the repeal is in effect.

Mr. Best has also determined that for each year of the first five years the repeal is in effect the anticipated public benefit will be reduced duplicative information and greater clarity regarding expectations TCADA has for individuals and organizations providing substance abuse services in Texas so that more concentration on quality of care issues and service outcomes results. There will be no effect on small businesses and there is no anticipated economic cost to current providers.

The code affected by the proposed repeal is the Texas Health and Safety Code, Chapter 461.

§143.1.Applicability.

§143.2.Allocation of Funds.

§143.3.Service Procurement Plan.

§143.11.Selection Criteria.

§143.12.Notice.

§143.13.Request for Proposals (RFP).

§143.14.Application.

§143.15.Application Criteria.

§143.17.Funding Decisions.

§143.21.Alternative Competition.

§143.22.Other Funding Processes.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 15, 2003.

TRD-200305245

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Chapter 144. CONTRACT REQUIREMENTS

The Texas Commission on Alcohol and Drug Abuse (TCADA) proposes the repeal of Chapter 144, concerning Contract Requirements.

Sections 144.1, 144.11, and 144.21 of Subchapter A--General Provisions of the existing rule contain information on programs affected by Chapter 144, waivers, and definitions.

Sections 144.101, 144.103 - 144.109, 144.121, 144.123, 144.124, 144.131-144.134, 144.141, 144.142, and 144.145 of Subchapter B--Contract Administration pertain to contract provisions, specifically TCADA requirements for reporting organizational and personnel changes, matching awards, financial eligibility, third party payment, and reporting. Sections also contains information on cost reimbursement and billing for treatment services, applicability of Federal and State regulations, program income, indirect cost, subcontracting, and contract closeout.

Sections 144.201, 144.204, 144.211 - 144.216 of Subchapter C--Program Oversight pertain to commission oversight, specifically on-site reviews, independent audit report requirements, and audit report desk reviews.

Sections 144.311, 144.313, and 144.321 - 144.327 of Subchapter D--Organizational contain general requirements for funded providers, including requirements for establishing and maintaining effective internal programmatic and financial controls, policies and procedures.

Sections 144.401, 144.411 - 144.418, 144.441 - 144.447, 144.451 - 144.456, 144.458, 144.460, and 144.462 of Subchapter E--Prevention and Intervention pertain to funded programs providing prevention or intervention services.

Sections 144.501, 144.511, 144.521 - 144.523, 144.525, 144.526, 144.532, 144.541 - 144.543, 144.545, 144.551 - 144.553 of Subchapter F--Treatment pertain to programs funded to provide treatment services.

The repeal of Chapter 144 is proposed because TCADA is adopting new rules. The new rules will be reorganized to provide a more functional and logical framework that is more closely aligned with the other agencies operating under the Health and Human Services Commission.

Thomas F. Best, General Counsel, has determined that there will be no fiscal implications for state or local government for the first five-year period the repeal is in effect.

Mr. Best has also determined that for each year of the first five years the repeal is in effect the anticipated public benefit will be better protection of public funds, reduced duplicative information and greater clarity regarding expectations TCADA has for individuals and organizations providing substance abuse services in Texas so that more concentration on quality of care issues and service outcomes results. There will be no effect on small businesses and there is no anticipated economic cost to current providers.

Subchapter A. GENERAL PROVISIONS

40 TAC §§144.1, 144.11, 144.21

The repeal is proposed under the Texas Health and Safety Code, §461.012(a)(15) which provides the commission with the authority to adopt rules governing the functions of the commission, including rules that prescribe the policies and procedures followed by the commission when funding services and §461.0141 which provides the commission with authority to adopt rules regarding purchase of services. The repeal is also proposed under Texas Health and Safety Code Chapter 464, which provides TCADA with the authority to adopt rules and standards for the licensure of chemical dependency treatment facilities.

The code affected by the proposed repeal is Texas Health and Safety Code Chapters 461 and 464.

§144.1.Applicability.

§144.11.Waivers.

§144.21.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 August 15, 2003.

TRD-200305244

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Subchapter B. CONTRACT ADMINISTRATION

40 TAC §§144.101, 144.103 - 144.109, 144.121, 144.123, 144.124, 144.131 - 144.134, 144.141, 144.142, 144.145

The code affected by the proposed repeal is Texas Health and Safety Code Chapters 461 and 464.

§144.101.General Contract Provisions.

§144.103.Organizational and Personnel Changes.

§144.104.Matching Awards.

§144.105.Financial Eligibility and Third Party Payment.

§144.106.Payment Requirements.

§144.107.Reporting.

§144.108.Cost Reimbursement for Treatment Services.

§144.109.Billing for Treatment Services.

§144.121.Application of Federal and State Regulations.

§144.123.Program Income.

§144.124.Indirect Cost.

§144.131.Expenditures Requiring Prior Approval.

§144.132.Equipment and Supplies.

§144.133.Travel.

§144.134.Minor Remodeling.

§144.141.Procurement of Goods and Services.

§144.142.Subcontracting.

§144.145.Contract Closeout.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 15, 2003.

TRD-200305243

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Subchapter C. PROGRAM OVERSIGHT

40 TAC §§144.201, 144.204, 144.211 - 144.216

The code affected by the proposed repeal is Texas Health and Safety Code Chapters 461 and 464.

§144.201.Commission Oversight.

§144.204.On-Site Reviews.

§144.211.Independent Audit Report.

§144.212.Auditor Qualifications.

§144.213.Independent Audit Report Requirements.

§144.214.Independent Audit Report Submission.

§144.215.Corrective Action Plan.

§144.216.Audit Report Desk Reviews.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 15, 2003.

TRD-200305242

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Subchapter D. ORGANIZATIONAL

40 TAC §§144.311, 144.313, 144.321 - 144.327

The code affected by the proposed repeal is Texas Health and Safety Code Chapters 461 and 464.

§144.311.General Requirements.

§144.313.Management and Organization.

§144.321.Policies and Procedures.

§144.322.Documentation and Records.

§144.323.Commission Logo and Slogan.

§144.324.Limiting Barriers.

§144.325.Complaints and Reports.

§144.326.Staffing.

§144.327.Standards of Conduct.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 15, 2003.

TRD-200305241

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Subchapter E. PREVENTION AND INTERVENTION

40 TAC §§144.401, 144.411 - 144.418, 144.441 - 144.447, 144.451 - 144.456, 144.458, 144.460, 144.462

The repeal of is proposed under the Texas Health and Safety Code, §461.012(a)(15) which provides the commission with the authority to adopt rules governing the functions of the commission, including rules that prescribe the policies and procedures followed by the commission when funding services and §461.0141 which provides the commission with authority to adopt rules regarding purchase of services. The repeal is also proposed under Texas Health and Safety Code Chapter 464, which provides TCADA with the authority to adopt rules and standards for the licensure of chemical dependency treatment facilities.

The code affected by the proposed repeal is Texas Health and Safety Code Chapters 461 and 464.

§144.401.Applicability.

§144.411.Program Design and Implementation.

§144.412.Program Self-Evaluation.

§144.413.Performance and Activity Measures.

§144.414.Performance Measure Review.

§144.415.Participant Rights.

§144.416.Tobacco Products.

§144.417.Staff Training.

§144.418.Transportation.

§144.441.Information Dissemination.

§144.442.Prevention Education and Skills Training.

§144.443.Alternative Activities.

§144.444.Problem Identification and Referral.

§144.445.Community-Based Process.

§144.446.Environmental and Social Policy.

§144.447.Intervention Services.

§144.451.Youth Prevention Programs.

§144.452.Youth Intervention Programs.

§144.453.Community Coalitions.

§144.454.Prevention Training Services.

§144.455.Prevention Resource Centers.

§144.456.Outreach, Screening, Assessment, and Referral Services.

§144.458.Pregnant Postpartum Intervention Programs.

§144.460.HIV Early Intervention Services (HEI).

§144.462.HIV Outreach Services.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 15, 2003.

TRD-200305240

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Subchapter F. TREATMENT

40 TAC §§144.501, 144.511, 144.521 - 144.523, 144.525, 144.526, 144.532, 144.541 - 144.543, 144.545, 144.551 - 144.553

The code affected by the proposed repeal is Texas Health and Safety Code Chapters 461 and 464.

§144.501.Applicability.

§144.511.Program Plan and Implementation.

§144.521.Client Eligibility.

§144.522.Priority Populations.

§144.523.Waiting List and Interim Services.

§144.525.Admission Determination and Placement.

§144.526.Length of Stay Guidelines.

§144.532.Core Program Requirements.

§144.541.Specialized Treatment Services for Females.

§144.542.Additional Requirements for Women and Children's Residential Programs.

§144.543.Pharmacotherapy Services.

§144.545.Family Services.

§144.551.Performance Measure Review.

§144.552.Select Performance Measure Definitions.

§144.553.Client Record Documentation.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 15, 2003.

TRD-200305239

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Chapter 145. FAITH BASED CHEMICAL DEPENDENCY PROGRAMS

40 TAC §§145.11, 145.21 - 145.25

The Texas Commission on Alcohol and Drug Abuse (TCADA) proposes the repeal of Chapter 145, concerning Faith-Based Chemical Dependency Programs.

Section 145.11 and §§145.21 - 145.25 contain definitions and information on registering and exempting Faith-Based Programs from TCADA licensure and process for revoking Faith-Based exemption.

The repeal of Chapter 145 is proposed because TCADA is adopting new rules. The new rules will be reorganized to provide a more functional and logical framework that is more closely aligned with the other agencies operating under the Health and Human Services Commission.

Thomas F. Best, General Counsel, has determined that there will be no fiscal implications for state or local government for the first five-year period the repeal is in effect.

Mr. Best has also determined that for each year of the first five years the repeal is in effect the anticipated public benefit will be more efficient use of resources, reduced duplicative information and greater clarity regarding expectations TCADA has for individuals and organizations providing substance abuse services in Texas so that more concentration on quality of care issues and service outcomes results. There will be no effect on small businesses and there is no anticipated economic cost to current providers.

The repeal is proposed under the Texas Health and Safety Code, Chapter 464, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules licensing chemical dependency treatment facilities.

The code affected by the proposed repeal is the Texas Health and Safety Code, Chapter 464.

§145.11.Definitions.

§145.21.Exemption for Faith-Based Programs.

§145.22.Registration for Exempt Faith-Based Programs.

§145.23.Admission.

§145.24.Advertisement.

§145.25.Revocation of Exemption.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 15, 2003.

TRD-200305238

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Chapter 146. INTERAGENCY AGREEMENTS

40 TAC §146.21

(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 Commission on Alcohol and Drug Abuse or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The Texas Commission on Alcohol and Drug Abuse (TCADA) proposes the repeal of Chapter 146, concerning Interagency Agreements.

Section 146.21 contains information about criteria for measuring the effectiveness of substance abuse prevention programs.

The repeal of Chapter 146 is proposed because TCADA is adopting new rules. The new rules will be reorganized to provide a more functional and logical framework that is more closely aligned with the other agencies operating under the Health and Human Services Commission.

Thomas F. Best, General Counsel, has determined that there will be no fiscal implications for state or local government for the first five-year period the repeal is in effect.

The repeal is proposed under the Texas Health and Safety Code, §461.012(a)(15) which authorizes TCADA to adopt rules governing its functions, including rules that prescribe the policies and procedures followed by TCADA in administering its programs.

The code affected by the proposed repeal is the Texas Health and Safety Code, Chapter 461.

§146.21.Criteria Established to Measure the Effectiveness of Substance Abuse Prevention Programs.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 15, 2003.

TRD-200305237

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Chapter 147. CONTRACT PROGRAM REQUIREMENTS

The Texas Commission on Alcohol and Drug Abuse (TCADA) proposes new Chapter 147, §§147.101 - 147.117, 147.201 - 147.204, 147.301 - 147.304, 147.401, 147.402, 147.501, 147.502, 147.601 - 147.604, and 147.701, pertaining to Contract Program Requirements. TCADA has submitted its proposal to repeal the existing Chapter 147 to the Texas Register for publication in this issue.

The new Chapter 147 incorporates portions of other existing rules concerning the delivery of program services funded by TCADA. Narcotics treatment programs, HIV, women's services, prevention/intervention and outreach, screening, assessment, and referral (OSAR) services are affected by these changes.

Most of the funding specific rules for Commission funded prevention programs, formerly found in Chapter 144--Contract Requirements, and 148--Facility Licensure, have been moved to the proposed new Chapter 147. These rules set out specific program requirements for program selection, target population, reporting, evaluation, and each of the six Center for Substance Abuse Prevention (CSAP) strategies.

The proposed new rules also take into account the new capacity and outcome measures requirement of the Performance Partnership Grant (PPG), which CSAP and Substance Abuse and Mental Health services Administration (SAMSHA) is proposing for fiscal year 2005. As a result, requirements pertaining to capacity management and outcome measures are included in the proposed rules.

Thomas F. Best, General Counsel, has determined that there will be no significant fiscal impact on state or local government for the first five-year period the new rules are in effect.

Mr. Best has also determined that for each year of the first five years the new rules are in effect the anticipated public benefit will be clarified expectations for funded providers and greater capability to effectively measure and manage capacity and outcomes.

As a result of adoption of the new rules, there will be no significant marginal effect on small businesses and there is no significant marginal economic cost to current providers.

Comments on the proposal may be submitted to Albert Ruiz, Texas Commission on Alcohol and Drug Abuse, P.O. Box 80529, Austin, Texas 78708-0529. Comments may also be submitted electronically to rules.revisions@tcada.state.tx.us or faxed to (512) 821-4418. All comments must be received no later than October 15, 2003.

To ensure consideration, comments must clearly specify a particular section of the rule. Comments should include proposed alternative language as appropriate.

Subchapter A. PREVENTION AND INTERVENTION

40 TAC §§147.101 - 147.117

The new rules are proposed under the Texas Health and Safety Code, §461.012(a)(15) which provides the Commission with the authority to adopt rules governing the functions of the Commission, including rules that prescribe the policies and procedures followed by the Commission when funding services and §461.0141 which provides the Commission with authority to adopt rules regarding purchase of services. The new rules are also proposed under Texas Health and Safety Code, §464.009, which provides TCADA with the authority to adopt rules and standards for the licensure of chemical dependency treatment facilities.

The code affected by the proposed new rules is Texas Health and Safety Code Chapters 461 and 464.

§147.101.Applicability and Definitions.

(a) The rules in this subchapter apply only to funded programs providing prevention or intervention services.

(b) All funded programs must also comply with Chapter 148 of this title (relating to General Provisions).

(c) The words and terms used in this chapter shall have meanings set forth in Chapter 141 (2003) of this title, unless the context clearly indicates otherwise. The following definition is specific to prevention and intervention: Young Adults--Individuals aged 18 - 21 served by Commission-funded youth services prevention providers. Prevention providers may bill and report individuals aged 18 - 21 as youth if all other requirements are met.

§147.102.Program Design and Implementation.

(a) The provider shall determine what population(s) the program is designed to serve: universal, selective or indicated.

(b) The program shall identify and describe the primary and secondary target populations including specific information about:

(1) age, gender, and ethnicity;

(2) risk and protective factors;

(3) patterns of substance use;

(4) social and cultural characteristics;

(5) knowledge, beliefs, values, and attitudes; and

(6) needs.

(1) address identified risks, needs and/or problems of the primary and secondary target populations;

(2) are designed to enhance protective factors;

(3) clearly describe behavioral and/or societal changes to be achieved; and

(4) are realistic in relation to available resources.

(d) The program shall establish objectives that are linked to the goals. Objectives must be measurable, have outcome and family strategies where appropriate.

(e) The program design shall be based on a logical, conceptually sound framework to connect the prevention or intervention effort with the intended result of preventing alcohol, tobacco, and other drug problems. Curricula selected shall be evidence based and appropriate for the target population served. The program shall maintain the fidelity of the program design.

(f) In order to carry out the program design, the program shall incorporate a combination of some or all of the Center for Substance and Prevention's (CSAP) prevention strategies. All youth prevention programs (YPP) and youth intervention programs (YPI) must at a minimum conduct prevention education and skills training as a core strategy.

(g) The program shall be designed to build on and support related prevention and intervention efforts in the community. The program shall establish formal linkages and coordinate with other community resources.

(h) The program shall be appropriately structured to implement the program design. The prevention effort shall be consistent with the availability of personnel, resources, and realistic opportunities for implementation.

(i) The program design, content, communications, and materials shall:

(1) be available in the primary language of the target population;

(2) be appropriate to the literacy level, gender, race, ethnicity, sexual orientation, age, and developmental level of the target population; and

(3) recognize the cultural context of the family unit.

§147.103.Key Performance and Activity Measures.

The program shall track and appropriately document the key performance and activity measures defined for the target populations and the services provided as outlined in the contract. The program must maintain adequate documentation to substantiate the reported numbers.

§147.104.Performance Measure Review.

(a) Programs will be held to specific key performance measures as stated in the contract.

(b) The Commission shall review actual performance on key measures and notify the program in writing if the program failed to achieve the expected level of performance.

(c) If the program fails to achieve the expected level of performance, the program shall respond within 30 days from the postmark date of the Commission's written notification with a timeframe in which the deficiencies will be resolved. The program must resolve the noted deficiencies or be subject to sanctions as described in the contract.

(d) The Commission shall take at least one of the following actions in response to performance deficiencies:

(1) notify the program in writing that timeframe for resolving deficiencies has been approved;

(2) specify additional conditions to include manual pay;

(3) impose contract restrictions or sanctions or terminate the contract.

§147.105.Staff Training.

(a) During the first six months of employment, all direct service prevention and intervention staff shall receive a total of 16 hours of training (or document 16 hours of equivalent training), with a minimum of three hours in each of the following areas:

(1) cultural competency;

(2) risk and protective factors/building resiliency;

(3) child development and/or adolescent development, as appropriate; and

(4) strategies for strengthening families.

(b) Staff shall have specific training in the curriculum implemented for prevention education/skills training before facilitating the curriculum independently.

(c) In subsequent years, all direct services prevention staff shall receive eight hours of prevention training related to the program design.

§147.106.Information Dissemination.

(a) Each program that provides activities within this strategy shall disseminate information about these topics as appropriate for the target population:

(1) the nature and extent of alcohol, tobacco, and other drug use, abuse, and addiction;

(2) human immunodeficiency syndrome (HIV) infection, tuberculosis (TB), Hepatitis, and sexually transmitted diseases (STDs); and/or

(3) information about available services and resources.

(b) The information shall be accurate and current.

(1) content; and

(2) mode, time, and location of delivery.

(d) The program shall document the number of individuals receiving written information/literature.

(e) For presentations, documentation shall include, as applicable:

(3) staff/volunteers conducting activity;

§147.107.Prevention Education and Skills Training.

(a) Education and skills training must be designed to affect critical life and social skills and include decision-making, refusal skills, critical analysis and systematic judgment abilities.

(b) The activities must include extensive interaction between the leader and the participants.

(c) Activities shall be conducted according to a written, time-specific curriculum, which is based on proven, effective principles.

(d) Each program that provides activities within this strategy must help participants gain knowledge and/or skills needed to access assistance or help with a problem.

(e) Documentation shall include, as applicable:

(3) staff/volunteers conducting activity;

§147.108.Alternative Activities.

(a) Each program that provides activities within this strategy shall provide alternative activities designed to assist participants in:

(1) mastering new skills;

(2) developing/maintaining relationships;

(3) bonding with peers, family, school , and community;

(4) building cultural understanding, and honoring diversity; and

(5) identifying activities which offset the attraction to fill needs met by alcohol, tobacco and other drug use.

(b) Alternative activities shall be planned and conducted to complement the existing program design and proposed outcomes.

(3) staff/volunteers conducting activity;

§147.109.Problem Identification and Referral.

(a) General requirements. Each program will provide components to identify those who have indulged in illegal use of tobacco or alcohol and those individuals who can have indulged in first use of illicit drugs in order to assess if their behavior can be reversed through education. Required components include screening, referral, and follow-up. This strategy does not include any activity designed to determine if a person is in need of treatment.

(b) Screening. The screening process shall be designed to identify warning signs for alcohol, tobacco, and/or other drug abuse. The screening shall also identify STD/HIV risk factors as appropriate.

(c) Referral. The program shall maintain a current list of referral resources, including other services provided by the organization.

(d) Follow-up. The program shall conduct and document follow-up on referrals to ensure that the participant has presented for services.

(e) Documentation. The program shall maintain documentation of each screening which includes:

(1) date of the screening;

(2) zip code of the individual screened;

(3) demographics of the individual screened;

(4) referrals made; and

(5) any follow-up contacts.

§147.110.Community-Based Process.

(a) Each program that provides activities within this strategy shall work with other service providers, organizations, individuals, and families to effectively promote substance abuse services and improve the community's ability to prevent substance abuse and related problems.

(b) The program must establish formal linkages with other service providers to build a continuum of substance abuse services in the community. The program shall document active participation in collaborations to support community resource development.

(c) When the program coordinates services with another provider, there must be a written agreement that is renewed annually (by signature or other documented contact) and includes:

(1) names of the providers entering into the agreement;

(2) services or activities each provider will provide;

(3) signatures of authorized representatives; and

(4) dates of action and expiration.

(d) Documentation of community-based process activities shall include, as applicable:

(2) key contact persons/providers involved;

(3) purpose and goal of activity;

(4) further action steps needed; and

(5) action or change achieved.

§147.111.Environmental and Social Policy.

(a) Each program that provides activities within this strategy shall take steps to influence the incidence and prevalence of substance abuse through:

(1) legal and regulatory strategies; or

(2) service and action-oriented activities.

(b) Activities must involve members of the community and other key stakeholders who will be impacted by the outcome.

(d) Documentation shall include, as applicable:

(2) key contact persons/providers involved;

(3) purpose and goal of activity;

(4) further action steps needed; and

(5) action or change achieved.

(e) Documentation of minors and tobacco presentations shall document:

(1) content; and

(2) mode, time, and location of delivery.

(f) The program shall document the number of persons receiving written information/literature.

(g) For presentations, documentation shall include, as applicable:

(3) staff/volunteers conducting the activity;

§147.112.Intervention Services.

(a) Each program that provides activities within this strategy shall provide indicated prevention services to individual participants who are showing early warning signs of substance use or abuse and/or exhibiting other high risk problem behaviors. Family members may also be involved in these services.

(b) The program shall determine the needs of the participant (and family members) in a culturally appropriate, face-to-face screening. The screening shall gather information to identify the participant's risk and protective factors in five domains: individual, family, school, peer relationships, and community. Should the participant and/or family member need a more intensive level of services, the invention service provider facilitates their access to the needed service.

(1) Information about the individual shall include:

(A) age, gender, culture and ethnicity;

(B) individual assets;

(D) legal issues.

(2) Information about the family as permitted by law shall include:

(A) structure;

(B) functioning; and

(3) School information shall include:

(A) literacy level;

(B) academic performance; and

(4) Information about peer relationships shall include:

(A) ATOD use;

(B) gang or club involvement;

(D) social functioning.

(5) Information about the community shall include:

(A) economic status;

(B) general environment;

(D) availability of ATOD.

(c) The staff person and the participant (and family members, if appropriate) shall develop an intervention plan to address identified needs. The plan shall include:

(1) behavioral goals;

(2) timelines for completing the goals; and

(3) recommended indicated services.

(d) Intervention services shall be conducted through confidential face-to-face contacts with participants and/or family members.

(e) Intervention services for each participant shall be documented, including:

(1) the screening;

(2) the intervention plan;

(3) documentation of each session, including a summary of the session and progress toward or away from identified goals;

(4) referrals and follow-ups; and

(5) an exit summary which includes a description of the results achieved and participant status at closure.

§147.113.Youth Prevention Programs.

(a) The goal of youth prevention programs shall be to preclude the onset of the use of alcohol, tobacco and other drugs by youth and to foster the development of social and physical environments that facilitate healthy, drug-free lifestyles.

(b) Youth prevention programs shall offer universal and/or selective prevention strategies to youth and their families.

§147.114.Youth Intervention Programs.

(a) The goal of youth intervention prevention programs shall be to prevent or interrupt the use of alcohol, tobacco and other drugs by youth who are showing early warning signs of substance use or abuse and/or exhibiting other high-risk problem behaviors in order to halt the progression and escalation of use, abuse, and related problems.

(b) Youth programs shall offer indicated prevention strategies to youth and their families.

(c) The program shall provide information, referrals, and follow-up for participant and/or family needs that cannot be met by the program. These referrals must be documented.

(d) If a participant shows signs of established substance abuse or dependency and appears to be in need of more intensive services, the program shall facilitate access to treatment assessment and placement. The program may continue to provide indicated prevention services on an interim basis to a participant who has been referred to treatment.

(e) The program may also provide crisis intervention services to participants and their families to intervene in situations which may or may not involve alcohol and drug use, and which may escalate if immediate attention is not provided.

(1) Crisis intervention may be offered through telephone contacts and/or face- to-face individual, family, and group interventions.

(2) Crisis intervention services must be documented.

(3) Crisis intervention services in the context of an indicated prevention program may be provided by non-licensed staff who are qualified to perform these functions.

§147.115.Community Coalitions.

(a) Community coalitions shall implement strategies designed to accomplish the following goals:

(1) to prevent and reduce substance use and abuse among youth in each community served;

(2) to strengthen collaboration in communities and support the existing community-based prevention and treatment infrastructure; and

(3) to increase citizen participation and greater commitment among all sectors of the community toward reducing substance use and abuse. Community coalitions shall include (or document attempts to recruit) one or more representatives from each of these areas:

(F) community organizations serving youth;

(G) faith-based groups;

(H) civic and/or volunteer groups;

(I) health care professionals;

(J) State, local or tribal governmental agencies with expertise in substance abuse;

(K) other organizations involved in reducing substance abuse;

(L) law enforcement; and

(M) recovery community.

(b) Community coalitions shall implement community-based processes and environmental and social policy strategies in the community.

(c) Community coalitions, other than Statewide Incentive Grant (SIG) recipients, shall not provide or subcontract for the provision of individual direct services, including prevention education and skills training, alternative activities or problem identification and referral.

§147.116.Prevention Resource Centers.

(a) The goal of each prevention resource center shall be to increase the effectiveness and visibility of prevention of alcohol, tobacco and other drug use and abuse within the region it is funded to serve through information dissemination, community education, and identification of training resources and best practices in prevention.

(b) Each prevention resource center shall provide universal prevention strategies to the region it serves.

(c) Identified target groups shall include at a minimum: prevention professionals and volunteers; community leaders; teachers; school counselors and educational administrators; children and adolescents; parents and families; communities at large; local news media within the region served; and other persons in need of training in the area of alcohol, tobacco and other drugs.

(d) The following services are required of all funded prevention resource centers:

(1) prevention needs assessment and resource identification;

(2) prevention information marketing efforts;

(3) prevention training and referral to resources;

(4) prevention materials clearinghouse accessible to persons served in their region;

(5) regional coordination/networking; and

(6) regional prevention resource center web site and toll-free number.

(e) Each program shall submit reports as directed by the Commission.

§147.117.Pregnant and Parenting Adult and Adolescent Female Prevention Services.

In addition to the standards set forth in Chapter 148 of this title (relating to Standard of Care), prevention providers serving pregnant, post-partum female populations shall comply with the following standards of care:

(1) provide outreach and prevention services in prenatal clinics, hospitals, WIC offices, and other sites where adult and adolescent women may be seeking reproductive health care;

(2) utilize evidence based curricula for education on substance use, abuse and the effects of ATOD upon the fetus to women seeking services;

(3) identify pregnant women who are at high risk due to their use of ATOD or who are at high risk due to the use of ATOD by others and provide motivational counseling to reduce risk, provide education on reproductive health, fetal and child development, parenting, and family violence;

(4) provide referral of children and family members for substance prevention and/or treatment services;

(5) coordinate with other services and resources to include continuing care for pregnant, post-partum and parenting women;

(6) provide referral of infants and children 0 - 3 for early childhood intervention screening; and

(7) provide family service coordination for medical, perinatal, pediatric, WIC and other services that promote the health and well being of the individual.

(8) PPI programs shall comply with §147.112 (a), (b)(1) and (2), and (c) - (e) of this title (relating to Intervention Services),

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 18, 2003.

TRD-200305319

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Subchapter B. STANDARDS OF CARE FOR HIV PROGRAMMING

40 TAC §§147.201 - 147.204

The code affected by the proposed new rules is Texas Health and Safety Code Chapters 461 and 464.

§147.201.Applicability.

The rules in this subchapter apply only to funded programs providing HIV services.

§147.202.HIV Required Services.

(a) Programs receiving TCADA HIV funds shall provide comprehensive HIV services to HIV infected persons with substance abuse problems and persons at risk of being infected as a result of substance abuse related activity and their families and/or significant others. HIV services shall include the following components:

(1) access to HIV antibody counseling and testing. Staff who perform HIV antibody counseling and testing must be currently registered as a Prevention Counseling and Partner Elicitation (PCPE) counselor with the Texas Department of Health.

(2) access to screening for TB and STDs.

(3) counseling to help change behaviors associated with risk of infection.

(b) Programs shall establish annual written service agreements with a comprehensive community resource network of related health, social service providers, and Texas Department of Health (TDH)-sponsored community or regional planning groups.

§147.203.Minimum Operational Requirements for HIV Outreach Programs.

(a) HIV outreach programs identify substance abusers who may or may not be seeking treatment and provide them with information, activities, referrals, and education directed toward informing drug users about the relationship between drug use (especially injecting drug activity) and communicable diseases. The target population is specific to:

(1) injecting drug users at risk of HIV infection;

(2) women, adolescents, and ethnic minority drug users at risk of infection from HIV and other communicable diseases through drug use or unprotected sexual activities; and

(3) other drug users at risk of HIV and other communicable diseases.

(b) HIV outreach service programs shall use outreach models that are scientifically sound. Unless the Commission approves another model in writing, programs shall use one or more of the following models:

(1) The Indigenous Leader Model: Intervention Manual, Wiebel, W. and Levin, L.B., February 1992

(2) The National Institute on Drug Abuse (NIDA) Standard Intervention Model for Injection Drug Users: Intervention Manual, National AIDS Demonstration Research (NADR) program, National Institute on Drug Abuse, February, 1992; and,

(3) AIDS Intervention program for Injecting Drug Users: Intervention Manual, Rhodes, R., Humfleet, G.L., et al., February, 1992.

(d) Commission-funded HIV outreach programs shall refer all persons found to be HIV-infected to Commission-funded HIV early intervention programs.

§147.204.Minimum Operational Requirements for HIV Early Intervention (HEI) Programs.

(a) Programs shall develop and implement strategies to identify HIV infected individuals by increasing awareness of HEI services within the target populations. Targets for such efforts should include HIV outreach programs, other HIV service organizations, substance abuse treatment programs, and related health organizations.

(b) Programs shall implement service coordination for HIV infected individuals, which accommodates needs associated with treatment for HIV and substance abuse services. Programs are linked as a network to all other HEI providers in the system.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 18, 2003.

TRD-200305320

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Subchapter C. NARCOTIC TREATMENT PROGRAMS PROVIDING PHARMACOTHERAPY SERVICES

40 TAC §§147.301 - 147.304

The code affected by the proposed new rules is Texas Health and Safety Code Chapters 461 and 464.

§147.301.Applicability.

The rules in this subchapter apply only to funded Narcotic Treatment programs providing pharmacotherapy services.

§147.302.Program Objectives.

The ultimate objective for funding pharmacotherapy services is that this addicted population can have active lives, hold responsible jobs, succeed in school, care for families and have no greater incidence of psychopathology or general medical problems that their drug-free peers. Pharmacotherapy services are provided to substance abusing/dependent persons who are addicted to opioids/narcotics. Services include methadone administration and LAAM administration or other drugs that might be approved by the Federal Drug Administration (FDA) for therapy and approved by the Commission for payment. Narcotic treatment programs providing pharmacotherapy services should work to foster de-stigmatization, encourage the development of new clinical strategies and treatment strategies, promote individualized treatment planning, and ensure client rights.

§147.303.Required Services.

(a) Service components, modalities and delivery systems.

(1) Programs shall provide to staff and clients basic substance abuse/HIV/STDs/TB information. The information should include routes of transmission, methods of prevention, high-risk behaviors, occupational precautions, and behaviors in violation of Texas laws.

(2) Methadone/LAAM dosage levels should be conducted by a trained physician based on data that is adequate for each individual client.

(3) Programs shall provide or offer through a memorandum of understanding (MOU) with an appropriate service provider, high-risk prenatal care, proper dietary/nutrition requirements, ongoing individual, family, or group counseling, and parenting classes in conjunction with methadone treatment.

(4) Programs must ensure that methadone/LAAM clients have access to inpatient, residential or outpatient treatment for medical, surgical, psychiatric, and non-opiate chemical dependency conditions without interruption of pharmacotherapy services.

(b) Program design and implementation must address client's access to a full continuum of care to include substance free treatment for ATOD.

(c) Identify those services and/or collaborative arrangements that address co-occurring psychiatric and substance abuse disorders requirements.

(d) Treatment plans must address, if applicable:

(1) client's abuse or dependence on other substances;

(2) employment counseling and support.

§147.304.Minimum Operational Requirements.

(a) All narcotic treatment programs providing pharmacotherapy services shall maintain certification and licensure compliance with applicable statutes and regulations adopted by: Texas Department of Health; Center for Substance Abuse Treatment; and the Drug Enforcement Agency.

(b) Narcotic treatment programs providing pharmacotherapy shall ensure that clients served in programs funded by the Commission receive at least six face to face individual chemical dependency counseling sessions, specifically, one per week, during the initial 45 days of treatment. After the initial 45 days of continuous treatment, the client shall receive at least one face to face individualized counseling session every two weeks. After one year of continuous treatment, the client shall receive at least one individual counseling session each month.

(c) For all methadone clients, including those admitted on or after September 1, 2002, the maximum duration of methadone services under a contract shall be 18 months. The executive director of the Commission may grant exceptions to this restriction upon application by the contractor. Any request for exception must be justified by documentation showing that the client needs additional methadone services. The executive director may consider whether the client has a documented medical, physical or mental health condition, which would prevent gainful and sustainable employment. If the need for continued services is due to a medical or physical condition, the assessment to justify extended services must be performed by a licensed health professional as defined by §141.101(72) of this title (relating to Definitions). If it is a result of a mental health condition, the assessment must be conducted by a qualified mental health professional as defined by §141.101(99) of this title (relating to Definitions). The assessment of the client's condition must be in direct consultation with a physician licensed by, and in good standing with, the Texas State Board of Medical Examiners.

(d) All narcotic treatment programs providing pharmacotherapy shall adopt policies and procedures that conform with §144.418(b) of this title (relating to Capacity Reporting) and §147.700 of this title (relating to Waiting Lists and Interim Services).

(e) All narcotic treatment programs providing pharmacotherapy shall complete a client fee assessment on each Commission-funded client every six months.

(f) All direct care employees shall receive annual training that includes: symptoms of opiate withdrawal; drug urine screens; current standards of pharmacotherapy; and poly-drug addiction.

(g) The narcotic treatment program providing pharmacotherapy shall ensure that each individual who requests and is in need of treatment for intravenous drug abuse is admitted to an appropriate program not later than 21 days after making the request. Interim services must be provided within 48 hours.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 18, 2003.

TRD-200305321

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Subchapter D. OUTREACH, SCREENING, ASSESSMENT AND REFERRAL (OSAR) SERVICES

40 TAC §147.401, §147.402

The code affected by the proposed new rules is Texas Health and Safety Code Chapters 461 and 464.

§147.401.Applicability.

The rules in this subchapter apply only to funded outreach, screening, assessment and referral (OSAR) services.

§147.402.Standards for Outreach, Screening, Assessment and Referral Service Provision.

(a) OSARs shall provide screening and assessment, brief interventions, and referral services to individuals with potential substance use disorders.

(b) Screening shall include determination of financial and clinical eligibility for Commission-funded services.

(c) Services shall be offered at times and in locations that facilitate access for target populations, including off-site locations.

(d) Screening and emergency response shall be available 24 hours a day, seven days a week. Screening and assessment shall be conducted by qualified staff using the Commission's Behavioral Health Integrated Provider System (BHIPS).

(e) Screening and assessment shall be sufficient to determine the problem severity, service needs, and stage of change. All clients referred for treatment shall have a DSM diagnosis.

(f) Services shall be provided by qualified staff with skills in motivational interviewing and other engagement techniques.

(g) If an individual is eligible and motivated for Commission-funded services, the OSAR shall arrange for admission to the appropriate service based on client needs and preferences.

(h) The OSAR shall provide brief interventions to help individuals move through the stages of change to a state of readiness to address substance use problems. Brief intervention may be provided as pre-treatment or interim services or as an independent service.

(i) Individuals who are not eligible for TCADA-funded services shall be referred to alternative service providers consistent with their needs and financial resources.

(j) Screening and assessment shall, when appropriate, address the family as a unit and referrals shall be provided for family members, including prevention services for children.

(k) The program shall maintain a resource directory on file that contains current information about local referral resources, including location and contact information, services offered, and eligibility criteria.

(l) OSARs shall coordinate client care across the continuum of care.

(1) A care plan shall be developed for individuals entering Commission-funded services.

(2) The OSAR shall facilitate timely placement into an appropriate level of service.

(3) The OSAR shall provide long-term service coordination for high-severity clients, including:

(A) participating in evaluating treatment;

(B) facilitating intensity of services as determined by client needs and progress;

(D) conducting post-discharge follow-up;

(E) providing long-term monitoring; and

(F) offering brief interventions when needed to maintain stability.

(m) OSARs shall coordinate with Commission-funded providers to ensure a seamless episode of care and maximize use of available resources.

(n) OSARs shall promote community awareness of available services through outreach with emphasis on increasing access for priority populations.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 18, 2003.

TRD-200305322

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Subchapter E. TREATMENT PERFORMANCE STANDARDS

40 TAC §147.501, §147.502

The code affected by the proposed new rules is Texas Health and Safety Code Chapters 461 and 464.

§147.501.Applicability.

The rules in this subchapter apply only to funded treatment programs.

§147.502.Select Performance Measure Definitions.

(a) Minimum Duration of Retention in Treatment Reporting Requirement. This reporting requirement applies to intensive residential, supportive residential and outpatient programs except for pharmacotherapy programs. For a client to have completed the minimum threshold of retention in treatment, the client record must document the client-specific information that supports the reason for discharge listed on the discharge report in BHIPS. A client will be considered to have completed the minimum duration of retention in treatment if:

(1) In intensive or supportive residential program, the client's length of stay is at least 14 days.

(2) In outpatient programs, the client has attended at least 14 individual or group sessions.

(3) The discharge summary or transfer note shall indicate whether the client has successfully completed the minimum duration of retention in treatment according to the above criteria and must be signed by a qualified credentialed counselor (QCC).

(b) Abstinence. This measure applies to all programs except for pharmacotherapy programs and detoxification programs. Abstinence is the percent of clients who report no use of alcohol or drugs in the past 30 days when contacted 60 days after discharge from the treatment program.

(c) Referral Rate. This measure applies to detoxification programs. Referral rate is the percentage of clients who have completed detoxification treatment and are transferred continuing substance abuse treatment as defined below.

(d) Completion of Detoxification Treatment. The client record must record that both the following criteria have been met. Levels of toxic substances and withdrawal symptoms have been sufficiently reduced so that the client is medically stable and able to participate in a less intensive level of treatment. A statement to this effect must be signed by the medical director or designee of the program in the discharge summary or transfer note. A discharge plan or discharge note must be completed prior to discharge or transfer in accordance with §148.805 of this title (relating to Discharge).

(e) Referral. For a client to have been transferred from detoxification to continuing substance abuse treatment, the client records must indicate that one of the following criteria has been met.

(1) The client has been discharged from the program and referred to a less intensive level of treatment in another facility, and the program has conducted follow-up to determine the results of the referral. The referral and follow-up must be documented in the client record.

(2) The client has been transferred to a less intensive level of treatment within the organization. The client record must include a transfer note to document the transfer.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 18, 2003.

TRD-200305323

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Subchapter F. TREATMENT FOR PREGNANT AND POST PARTUM WOMEN WITH DEPENDENT CHILDREN

40 TAC §§147.601 - 147.604

The code affected by the proposed new rules is Texas Health and Safety Code Chapters 461 and 464.

§147.601.Applicability.

The rules in this subchapter apply only to funded treatment programs for pregnant and post partum women with dependent children.

§147.602.Purpose of Program.

The Commission shall provide awards or contracts to public and nonprofit private entities for the purpose of providing to pregnant and postpartum women and their children, including children in the custody of the court or the State, treatment for substance abuse through programs in which, during the course of receiving treatment:

(1) the women reside in facilities provided by the programs;

(2) the minor children of the women reside with the women in such facilities, if the women so request; and

(3) the services described in this section are available to or on behalf of the women.

§147.603.Availability of Services.

(a) A program will ensure:

(1) treatment services and each supplemental service will be available through the program, either directly or through agreements with other public or nonprofit private entities; and

(2) the services will be made available to each woman admitted to the program.

(b) A provider shall provide or arrange for transportation to all services required and not provided at the facility.

§147.604.Individualized Plan of Services.

A funding agreement for an award for provision of services under this subchapter shall contain the following requirements:

(1) In providing authorized services for an eligible woman, the program shall, in consultation with the women, prepare an individualized plan for the provision to the woman of the services.

(2) Treatment services under the plan will include:

(A) individual, group, and family counseling, as appropriate, regarding substance abuse; and

(B) follow-up services to assist the woman in preventing a relapse into such abuse.

(3) Treatment services provided shall be gender specific.

(4) Required supplemental services for eligible women shall include:

(A) prenatal and postpartum health care, and

(B) referrals for necessary hospital services

(5) For the infants and children of the woman:

(A) pediatric health care, including treatment for any perinatal effects of maternal substance abuse and including screenings regarding the physical and mental development of the infants and children; immunizations;

(B) counseling and other mental health services, in the case of children; and

(6) Therapeutic interventions for children in custody of women in treatment shall address their development needs and issues of sexual abuse and neglect.

(7) Supervision of children shall be provided during periods in which the woman is engaged in therapy or in other necessary health or rehabilitative activities.

(8) Training in parenting shall be provided.

(9) Counseling on HIV and on acquired immune deficiency syndrome (AIDS), STDs and TB shall be provided.

(A) Clients shall be given the opportunity for pre- and post-test counseling on HIV and AIDS.

(B) Clients with a positive test for HIV shall be referred, when possible, to a Commission HEI/HIV coordinator to be considered for services.

(D) Clients shall be offered testing for sexually transmitted disease.

(10) Counseling on domestic violence and sexual abuse shall be provided.

(11) Counseling on obtaining employment, including the importance of graduating from a secondary school or GED course, shall be provided.

(12) Reasonable efforts shall be made to preserve and support the family units of the women, including promoting the appropriate involvement of parents and others, and counseling the children of the women.

(A) In cases when the State has custody of the minor child, all efforts will be made to participate in a family reunification plan with the custodial agency.

(B) The provider will work with the court and the client to meet the conditions of the court to reunite the family.

(13) Planning for and counseling to assist reentry into society shall be provided, both before and after discharge, including referrals to any public or nonprofit private entities in the community involved that provide services appropriate for the women and the children of the women.

(14) Service coordination shall be provided, to include:

(A) assessing the extent to which authorized services are appropriate for the women and their children;

(B) in the case of the services that are appropriate, ensuring that the services are provided in a coordinated manner; and

(C) assistance in establishing eligibility for assistance under Federal, State, and local programs providing health services, mental health services, housing services, employment services, educational services, or social services.

(15) The program shall provide outreach services in the community involved to identify women who are engaging in substance abuse and to encourage the women to undergo treatment for such abuse.

(16) A program providing services will:

(A) be operated at a location that is accessible to low-income pregnant and postpartum women; and

(B) provide authorized services in the language and the cultural context that is most appropriate.

(17) A funded program shall provide for continuing education in treatment services for the individuals who will provide treatment in the program to be operated by the program pursuant to such subsection.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 18, 2003.

TRD-200305324

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Subchapter G. CAPACITY MANAGEMENT AND INTERIM SERVICES

40 TAC §147.701

The new rule is proposed under the Texas Health and Safety Code, §461.012(a)(15) which provides the Commission with the authority to adopt rules governing the functions of the Commission, including rules that prescribe the policies and procedures followed by the Commission when funding services and §461.0141 which provides the Commission with authority to adopt rules regarding purchase of services. The new rule is also proposed under Texas Health and Safety Code, §464.009, which provides TCADA with the authority to adopt rules and standards for the licensure of chemical dependency treatment facilities.

The code affected by the proposed new rule is Texas Health and Safety Code Chapters 461 and 464.

§147.701.Waiting List and Interim Services.

The following provisions apply to all funded treatment services:

(1) The program shall maintain a waiting list or other organized and documented system to track eligible individuals who have been screened but cannot be treated immediately because of insufficient capacity. Eligible individuals who cannot enter treatment due to other circumstances may be placed on the waiting list, but the provider shall not hold empty beds or slots for anticipated clients for more than 48 hours.

(2) The program shall establish criteria that place members of the priority populations at the top of the waiting list.

(3) When individuals are placed on a waiting list, they shall also be referred to an entity that can provide testing, counseling, and treatment for HIV, TB and STDs.

(4) The program shall consult the State's facility capacity management system to facilitate prompt placement in an appropriate treatment program within a reasonable geographic area.

(5) The program shall implement written procedures to maintain contact with individuals waiting for admission.

(6) When a program does not have capacity to admit an injecting drug user or pregnant female, the program shall place the individual in another treatment facility or provide reasonable access to interim services (when another treatment facility is not available).

(A) Interim services shall be offered within 48 hours.

(B) Interim services shall include counseling and education about HIV and TB, including the risks of needle-sharing, the risks of transmission to sexual partners and infants, and steps that can be taken to prevent transmission. Referrals for HIV or tuberculosis treatment shall be provided if necessary. For pregnant females, interim services shall also include counseling about the effects of alcohol and drug use on the fetus and referrals for prenatal care.

(7) The program shall ensure that each individual who requests and is in need of treatment for intravenous drug abuse is admitted to an appropriate program not later than 21 days after making the request. Interim services must be provided within 48 hours as described in paragraph (6)(A) of this section.

(8) Capacity management may be handled through a centralized intake system.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 18, 2003.

TRD-200305325

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Chapter 148. FACILITY LICENSURE

The Texas Commission on Alcohol and Drug Abuse (TCADA) proposes the repeal of Chapter 148, concerning Facility Licensure.

Section 148.1 of Subchapter A--Definitions defines terms.

Sections 148.11, 148.21 - 148.28 and 148.31 of Subchapter B--Licensure Information state the purpose of the chapter and contain information on licensure requirements; procedures for applying for and renewing a license; and reporting changes in status. Sections also contain information pertaining to licensure fees and establish grounds for taking action against a licensee.

Sections 148.101 - 148.103, 148.105, 148.106, 148.111 - 148.113, and 148.115 of Subchapter C--Facility Management establish requirements for documenting an organization's staffing structure; policies, procedures and licensure rules; compliance with Americans with Disabilities Act; client records; significant incident reports; and client transportation.

Sections 148.201 - 148.203 and §148.205 of Subchapter D--Personnel and Staff Development establish requirements for hiring practices, use of students and volunteers, and staff training.

Sections 148.301 - 148.303, 148.311 - 148.313, 148.315, and 148.316 of Subchapter E--Client Rights contains information on client rights and requirements for establishing procedures for handling client grievances and investigating cases of suspected abuse, neglect, or exploitation. Sections also establish standards for appropriate use of client labor, restraint and seclusion, and searches.

Sections 148.401, 148.403, 148.405, 148.406, 148.411 - 148.413, 148.421 - 148.424, and 148.426 of Subchapter F--Program Services establish requirements for adolescent programs, correctional facilities, court commitment services; and establish standards for providing and documenting individualized client treatment.

Sections 148.501 - 148.504 of Subchapter G--Medication establish standards for storing and administering medication.

Sections 148.601 - 148.607 of Subchapter H--Residential Physical Plant Requirements establish physical plant standards and establish requirements for emergency evacuation procedures, and inspections of fire systems.

The repeal of Chapter 148 is proposed because of extensive changes to the existing rules. TCADA staff incorporated portions of other existing rules relating to standards of care for substance abuse services into a new Chapter 148 in an effort to improve the consistency of substance abuse services in the state and to comply with the legislative mandate that TCADA develop model program standards for substance abuse services.

The proposed new rules, which will be published in this issue of the Texas Register will address standards of care applicable to all providers, facility licensure information and requirements, personnel practices and development, client rights, specific requirements for different types of program services, information on food and nutrition relating to facilities, correctional facilities, court commitment services, screening and assessment, medication, and residential physical plant requirements.

Thomas F. Best, General Counsel, has determined that there will be no fiscal implications for state or local government for the first five-year period the repeal is in effect.

Subchapter A. DEFINITIONS

40 TAC §148.1

The repeal is proposed under the Texas Health and Safety Code, §461.012(a)(15) which provides TCADA with the authority to adopt rules governing its functions, including rules that prescribe the policies and procedures it follows when funding services and §461.0141 which provides TCADA with authority to adopt rules regarding purchase of services. The repeal is also proposed under Texas Health and Safety Code Chapter 464, which provides TCADA with the authority to adopt rules and standards for the licensure of chemical dependency treatment facilities.

The code affected by the proposed repeal is the Texas Health and Safety Code, Chapters 461 and 464.

§148.1.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 August 15, 2003.

TRD-200305257

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Subchapter B. LICENSURE INFORMATION

40 TAC §§148.11, 148.21 - 148.28, 148.31

The code affected by the proposed repeal is the Texas Health and Safety Code, Chapters 461 and 464.

§148.11.Purpose.

§148.21.License Required.

§148.22.Variances.

§148.23.New Licensure Application.

§148.24.Licensure Renewal.

§148.25.Changes in Status.

§148.26.Closure.

§148.27.Licensure Review.

§148.28.Licensure Fees.

§148.31.Action Against a License.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 15, 2003.

TRD-200305256

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Subchapter C. FACILITY MANAGEMENT

40 TAC §§148.101 - 148.103, 148.105, 148.106, 148.111 - 148.113, 148.115

The code affected by the proposed repeal is the Texas Health and Safety Code, Chapters 461 and 464.

§148.101.Facility Organization.

§148.102.Policies, Procedures, and Licensure Rules.

§148.103.Standards of Conduct.

§148.105.General Environment.

§148.106.Required Postings.

§148.111.General Documentation Requirements.

§148.112.Client Records.

§148.113.Significant Incident Reports.

§148.115.Client Transportation.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 15, 2003.

TRD-200305255

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Subchapter D. PERSONNEL AND STAFF DEVELOPMENT

40 TAC §§148.201 - 148.203, 148.205

The code affected by the proposed repeal is the Texas Health and Safety Code, Chapters 461 and 464.

§148.201.Hiring Practices.

§148.202.Students and Other Volunteers.

§148.203.Staff Training.

§148.205.Training Requirements Relating to Abuse, Neglect, and Unprofessional or Unethical Conduct.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 15, 2003.

TRD-200305254

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Subchapter E. CLIENT RIGHTS

40 TAC §§148.301 - 148.303, 148.311 - 148.313, 148.315, 148.316

The code affected by the proposed repeal is the Texas Health and Safety Code, Chapters 461 and 464.

§148.301.Client Bill of Rights.

§148.302.Client Grievances.

§148.303.Client Abuse, Neglect, and Exploitation.

§148.311.Program Rules.

§148.312.Client Labor.

§148.313.Use of Restraint and Seclusion.

§148.315.Responding to Emergencies.

§148.316.Searches.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 15, 2003.

TRD-200305253

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Subchapter F. PROGRAM SERVICES

40 TAC §§148.401, 148.403, 148.405, 148.406, 148.411 - 148.413, 148.421 - 148.424, 148.426

The code affected by the proposed repeal is the Texas Health and Safety Code, Chapters 461 and 464.

§148.401.Requirements Applicable to All Programs (Residential and Outpatient).

§148.403.General Staffing Requirements (Residential and Outpatient).

§148.405.Additional Requirements for Level I (Residential or Outpatient Detoxification).

§148.406.Additional Requirements for Level II, III, and IV Residential Services.

§148.411.Additional Requirements for Adolescent Programs (Residential and Outpatient).

§148.412.Correctional Facilities.

§148.413.Court Commitment Services.

§148.421.Screening and Admission Authorization.

§148.422.Intake and Consent to Treatment.

§148.423.Initial Assessment.

§148.424.Treatment Planning and Implementation.

§148.426.Discharges.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 15, 2003.

TRD-200305252

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Subchapter G. MEDICATION

40 TAC §§148.501 - 148.504

The code affected by the proposed repeal is the Texas Health and Safety Code, Chapters 461 and 464.

§148.501.General Provisions for Medication.

§148.502.Medication Storage.

§148.503.Medication Inventory and Disposal.

§148.504.Administration of Medication.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 15, 2003.

TRD-200305251

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Subchapter H. RESIDENTIAL PHYSICAL PLANT REQUIREMENTS

40 TAC §§148.601 - 148.607

The code affected by the proposed repeal is the Texas Health and Safety Code, Chapters 461 and 464.

§148.601.General Physical Plant Provisions.

§148.602.Required Inspections.

§148.603.Emergency Evacuation.

§148.604.Exits.

§148.605.Space, Furniture and Supplies.

§148.606.Fire Systems.

§148.607.Other Physical Plant Requirements.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 15, 2003.

TRD-200305250

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Chapter 148. STANDARD OF CARE

The Texas Commission on Alcohol and Drug Abuse (TCADA) proposes new Chapter 148, §§148.101 - 148.103, 148.201 - 148.218, 148.301, 148.401 - 148.409, 148.501 - 148.510, 148.601 - 148.603, 148.701 - 148.708, 148.801 - 148.805, 148.901 - 148.911, 148.1001 - 148.1004, 148.1101 - 148.1104, 148.1201 - 148.1207, 148.1301, 148.1401, and 148.1501 - 148.1506 pertaining to Standards of Care. TCADA has submitted its proposal to repeal the existing Chapter 148 to the Texas Register for publication in this issue.

The new Chapter 148 incorporates portions of existing rules relating to standards of care for substance abuse services. The new rules are designed to ensure consistent and efficient delivery of substance abuse services in the state. These standards are applicable to the provision of services throughout the state as a function of TCADA licensure without regard to whether a licensee is funded by TCADA. These rules also include a standard of care for all programs, whether licensed or not, and include guidelines for prevention programs. These rules are proposed pursuant to the legislative mandate that TCADA develop model program standards for substance abuse services, contained in §461.0128 of the Texas Health and Safety Code.

The proposed new rules contain information on facility licensure requirements, personnel practices and development, client rights, specific requirements for different types of program services, as well as information on food and nutrition, correctional facilities, court commitment services, screening and assessment, medication, and residential physical plant requirements. Additionally, the new rules contain requirements that licensees initiate a quality management process for self evaluation.

The new rules clarify requirements for reporting incidents, staff training, and program services. The new rules adopt terminology to accurately reflect the treatment continuum. The detoxification provisions of the new rules are improved to clarify general requirements as well as require 24-hour staff coverage in all residential detoxification programs. Screening, admission, consent and assessment processes have been revised.

Thomas F. Best, General Counsel, has determined that there will be no significant fiscal impact on state or local government for the first five-year period the new rules are in effect.

Thomas F. Best has also determined that for each year of the first five years the new rules are in effect the anticipated public benefit will be more efficient use of resources, reduced administrative and regulatory burden on regulated entities, and greater clarity regarding expectations TCADA has for individuals and organizations providing substance abuse services in Texas. The resulting increased concentration on quality of care issues and service outcomes results will benefit all recipients of services and the general public.

The new rules require new licensees to have liability insurance. The cost for such insurance will vary geographically and is based upon the type and amount of services delivered. Additionally, the cost of such insurance will depend on the size of an organization and its claim history. Cost estimates for liability insurance coverage for a specific entity are widely available from the marketplace.

The new rules require licensees to have a bond to cover the cost of storage for client records. The estimated actual cost for storage of client records will depend on the size of the facility and the volume of client records. Additionally, the cost will vary geographically. Cost estimates for such storage are widely available in the marketplace. The average total costs for a secure storage facility sufficient to store the estimated client records for a midsized treatment facility in central Texas for 5 years is estimated to be $5,000. The bond required to cover this potential liability should be significantly less expensive.

The new rules require additional training for staff. Training costs will vary depending upon the type of training involved. Additionally, training costs will vary geographically. Training is estimated to be less than $15 per hour. TCADA believes that many of its licensees already comply with the requirements of the new rules in this regard. To the extent that this is true, there will be no additional cost of compliance.

The new rules require additional hours of service to clients in some circumstances. The economic impact associated with compliance with the new rule will depend upon the type of service and the funding source of the provider. In some circumstances unit rate and cost reimbursement payment mechanisms will ensure that there will be no economic impact or minimal economic impact. In other circumstances, providers may incur some additional costs depending upon existing staff utilization rates, availability of excess staff, facility capacity, and number of clients requiring service.

The new rules require annual reporting of certain information. The Commission believes that the information requested is already in the possession of those subject to this rule and that the reporting of that information on an annual basis will impose no measurable additional financial cost.

Except as described above, the Commission does not anticipate that the adoption of the new rules will have a significant effect on small businesses or a significant economic cost to current providers.

Comments on the proposal may be submitted to Albert Ruiz, Texas Commission on Alcohol and Drug Abuse, P.O. Box 80529, Austin, Texas 78708-0529. Comments may also be submitted electronically to rules.revisions@tcada.state.tx.us or faxed to (512) 821-4418. All comments must be received by October 15, 2003.

Subchapter A. DEFINITIONS

40 TAC §§148.101 - 148.103

The new rules are proposed under the Texas Health and Safety Code, §461.012(a)(15) which provides TCADA with the authority to adopt rules governing its functions, including rules that prescribe the policies and procedures it follows in administering any Commission programs and §461.0141 which provides TCADA with authority to adopt rules regarding purchase of services. The new rules are also proposed under Texas Health & Safety Code §461.0128 which provides that the Commission shall develop model program standards for substance abuse services for use by each state agency that provides or pays for substance abuse services. The new rules are also proposed under Texas Health & Safety Code, §464.009, which provides TCADA with the authority to adopt rules and standards for the licensure of chemical dependency treatment facilities.

The code affected by the proposed new rules is the Texas Health and Safety Code, Chapters 461 and 464.

§148.101.Definitions.

The words and terms used in this chapter shall have meanings set forth in 40 TEX. ADMIN. CODE ch. 141 (2003), of this title (relating to General Provisions) unless the context clearly indicates otherwise.

§148.102.Purpose.

The purpose of these rules is to ensure that individuals seeking substance abuse services are offered an efficient, effective, and appropriate continuum of services that will enable them to lead a normal life as a productive member of society. These rules further serve to protect the health, safety, and welfare of those receiving substance abuse services.

§148.103.Scope of Rule.

(a) All providers shall comply with the provisions of Subchapter B in all matters related to the provision of services.

(b) Providers who offer or purport to offer chemical dependency treatment and are not exempt from licensure under TEX. HEALTH & SAFETY CODE ANN. ch. 464 (Vernon 2001) are also required to comply with the provisions of Subchapter D through Subchapter N.

(c) Providers who engage in prevention or intervention activities shall also comply with the requirements of Subchapter C, and §148.703 of this title (relating to Abuse, Neglect and Exploitation).

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 18, 2003.

TRD-200305288

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Subchapter B. STANDARD OF CARE APPLICABLE TO ALL PROVIDERS

40 TAC §§148.201 - 148.218

The new rules are proposed under the Texas Health and Safety Code, §461.012(a)(15) which provides TCADA with the authority to adopt rules governing its functions, including rules that prescribe the policies and procedures it follows in administering any Commission programs and §461.0141 which provides TCADA with authority to adopt rules regarding purchase of services. The new rules are also proposed under Texas Health & Safety Code §461.0128 which provides that the Commission shall develop model program standards for substance abuse services for use by each state agency that provides or pays for substance abuse services. The new rules are also proposed under Texas Health & Safety Code, §464.009, which provides TCADA with the authority to adopt rules and standards for the licensure of chemical dependency treatment facilities.

The code affected by the proposed new rules is the Texas Health and Safety Code, Chapters 461 and 464.

§148.201.General Standard.

The provider shall provide adequate and appropriate services consistent with best practices and industry standards. The provider shall maintain objectivity. The provider shall respect each individual's dignity, and shall not engage in any action that may cause injury and shall always act with integrity in providing Services.

§148.202.Scope of Practice.

The provider shall recognize the limitations of their ability and shall not offer services outside the provider's scope of practice or use techniques that exceed their professional competence. The provider shall not make any claim, directly or by implication, that they possess professional qualifications or affiliations that they do not possess.

§148.203.Competence and Due Care.

Providers shall plan, supervise adequately, and evaluate any activity for which they are responsible. Providers shall render services carefully and promptly. Providers shall follow the technical and ethical standards related to the provision of services, strive continually to improve personal competence and quality of service delivery, and discharge their professional responsibility to the best of their abilities. Providers are responsible for assessing the adequacy of their own competence for the responsibility to be assumed. Services shall be designed and administered as to do no harm to recipients. The provider shall always act in the best interest of the individual being served. The provider shall terminate any professional relationship that is not beneficial, or is in any way detrimental, to the individual being served.

§148.204.Appropriate Services.

Services should be appropriate for the individual's needs and circumstances, including age and developmental level, and should be culturally sensitive. Providers shall possess an understanding of the cultural norms of the individuals receiving services. Services shall be respectful and non exploitative.

§148.205.Accuracy.

The provider shall report information fairly, professionally, and accurately when providing services and when communicating with other professionals, the Commission, and the general public. Each provider shall document and assign credit to all contributing sources used in published material or public statements. Providers shall not misrepresent either directly or by implication professional qualifications or affiliations.

§148.206.Documentation.

The provider shall maintain required documentation of services provided and related transactions including financial records.

§148.207.Discrimination.

The provider shall not discriminate against any individual on the basis of gender, race, religion, age, national origin, disability (physical or mental), sexual orientation, economic condition, medical condition, including HIV diagnosis or because an individual is perceived as being HIV infected.

§148.208.Access to Services.

The provider shall provide access to services, including providing information about other services and alternative providers, taking into account an individual's financial constraints and special needs.

§148.209.Location.

The provider shall not offer or provide services in settings or locations that are inappropriate, or harmful to individuals served or others.

§148.210.Confidentiality.

The provider shall protect the privacy of individuals served and shall not disclose confidential information without express written consent, except as permitted by law. The provider shall remain knowledgeable of, and obey, all State and Federal laws and regulations relating to confidentiality of records relating to the provision of services. The provider shall not discuss or divulge information obtained in clinical or consulting relationships except in appropriate settings and for professional purposes that demonstrably relate to the case. Confidential information acquired during delivery of services shall be safeguarded from illegal or inappropriate use, access and disclosure or from loss, destruction or tampering. These safeguards shall protect against verbal disclosure, prevent unsecured maintenance of records, or recording of an activity or presentation without appropriate releases.

§148.211.Environment.

The provider shall provide an appropriate, safe, clean, and well-maintained environment.

§148.212.Communications.

The provider shall inform the individual receiving services about all relevant and important aspects of the service relationship.

§148.213.Exploitation.

The provider shall not exploit relationships with individuals receiving services for personal or financial gain of the provider or its personnel. The provider shall not charge exorbitant or unreasonable fees for any service. The provider shall not pay or receive any commission, consideration, or benefit of any kind related to the referral of an individual for services.

§148.214.Duty to Report.

When a provider or its personnel have knowledge of unethical conduct or practice on the part of a person or provider, they have a responsibility to report the conduct or practices to appropriate funding or regulatory bodies or to the public. Any provider or provider personnel who receive an allegation or have reason to suspect that an individual has been, is, or will be subject to abuse, neglect or exploitation by any provider shall immediately inform TCADA's investigations division. The provider shall also take immediate action to prevent or stop the abuse, neglect, or exploitation and provide appropriate care and treatment. The provider shall report allegations of child abuse or neglect to the Texas Department of Protective and Regulatory Services as required by the TEX. FAM. CODE ANN. §261.101 (Vernon 1996). The provider shall report allegations of abuse, neglect or exploitation of an elderly or disabled individual to the Texas Department of Protective and Regulatory Services as required by the TEX. HUM. RES. CODE ANN. §48.051 (Vernon Supp. 2003). If the allegation involves sexual exploitation, the service provider shall comply with reporting requirements listed in the TEX. CIV. PRAC. & REM. CODE ANN. §81.006 (Vernon 1997).

§148.215.Impaired Providers.

Providers should recognize the effect of impairment on professional performance and should be willing to seek needed treatment. Where there is evidence of impairment in a colleague, a provider should be supportive of assistance or treatment.

§148.216.Ethics.

Providers shall adhere to established professional codes of ethics. These codes of ethics define the professional context within which the provider works, in order to maintain professional standards and safeguard the client or participant. Provider and all of its personnel shall protect consumers and act in an ethical manner at all times.

§148.217.Specific Acts Prohibited.

In addition to the provider's general duty to provide services in a professional manner, the following acts are specifically prohibited and shall constitute a violation of these rules.

(1) Providers shall not provide services, interact with individuals receiving services, or perform any job duties while under the influence or impaired by the use of alcohol, or mood altering substances, including prescription medications not used in accordance with a physician's order.

(2) Providers shall not commit an illegal, unprofessional or Unethical act (including acts constituting abuse, neglect, or exploitation).

(3) Providers shall not assist or knowingly allow another person to commit an illegal, unprofessional, or unethical act.

(4) Providers shall not falsify, alter, destroy or omit significant information from required reports and records or interfere with their preservation.

(5) Providers shall not retaliate against anyone who reports a violation of these rules or cooperates during a review, inspection, investigation, hearing, or other related activity.

(6) Providers shall not interfere with Commission reviews, inspections, investigations, hearings, or related activities. This includes taking action to discourage or prevent someone else from cooperating with the activity.

(7) Providers shall not enter into a personal or business relationship of any type with an individual receiving services until at least two years after the last date an individual receives services from the provider.

(8) Providers shall not discourage, intimidate, harass, or retaliate against individuals who try to exercise their rights or file a grievance.

(9) Providers shall not restrict, discourage, or interfere with any communication with law enforcement, an attorney, or with the Commission for the purposes of filing a grievance.

(10) Providers shall not allow unqualified persons or entities to provide services.

(11) Provider shall not hire or utilize known sex offenders in adolescent programs or programs that house children.

(12) Providers shall prohibit clients and participants from using tobacco products on the program site. Staff and other adults (volunteers, clients, participants and visitors) shall not use tobacco products in the presence of adolescent clients.

§148.218.Standards of Conduct

(a) The facility and all of its personnel shall protect clients' rights and provide competent services.

(b) Any person associated with the facility that receives an allegation or has reason to suspect that a person associated with the facility has been, is, or will be engaged in illegal, Unethical, or unprofessional conduct shall immediately inform the Commission's investigations division and the facility's chief executive officer or designee. If the allegation involves the chief executive officer, it shall be reported to the Commission and the facility's governing body.

(c) The facility and its personnel shall comply with TEX. HEALTH & SAFETY CODE ANN. ch. 164 (Vernon 2001)(relating to Treatment Facilities Marketing and Admission Practices).

(d) The facility shall have written policies on staff conduct that complies with this section.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 18, 2003.

TRD-200305287

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Subchapter C. STANDARDS FOR EVIDENCE-BASED PREVENTION PROGRAMS

40 TAC §148.301

The new rules are proposed under the Texas Health and Safety Code, §461.012(a)(15) which provides TCADA with the authority to adopt rules governing its functions, including rules that prescribe the policies and procedures it follows in administering any Commission programs and §461.0141 which provides TCADA with authority to adopt rules regarding purchase of services. The new rules are also proposed under Texas Health & Safety Code §461.0128 which provides that the Commission shall develop model program standards for substance abuse services for use by each state agency that provides or pays for substance abuse services. The new rules are also proposed under Texas Health & Safety Code, §464.009, which provides TCADA with the authority to adopt rules and standards for the licensure of chemical dependency treatment facilities.

The code affected by the proposed new rule is the Texas Health and Safety Code, Chapters 461 and 464.

§148.301.Standards for Evidence-Based Prevention Programs.

As is appropriate, prevention providers shall implement programs and provide services that incorporate the following principles.

(1) Programs are designed to enhance protective factors and move toward reversing or reducing known risk factors. Program providers are trained in risk factor and protective factor theory and research.

(2) Programs are provided in a way that preserves the protective factors inherent in each culture and individual.

(3) Prevention programs are age, developmentally and culturally appropriate.

(4) Programs determine the level of risk of the target population. More intense prevention programs are required for target populations with a recognized higher level of risk.

(5) Programs implement evidence-based prevention programs appropriate for the target population(s) using universal, selective and indicated criteria. Programs have proven Outcomes for the target population and are implemented with integrity and fidelity.

(6) When an evidence-based program is adapted to address the specific nature of the drug use or abuse problem in the local community, care is taken to adapt the program appropriately. The adaptation does not affect the integrity and fidelity of the program as it was designed.

(7) Programs teach skills to resist drugs when offered, strengthen personal commitments against drug use, and increase social competency. social competency skills, as they relate to reinforcement of attitudes against drug use, include skills related to communications, peer relationships, self-efficacy, and assertiveness.

(8) Programs for adolescents include interactive methods, such as peer discussion groups, in addition to lecture-style teaching techniques.

(9) Programs include a component which targets parents or caregivers. The parent/caregiver component reinforces what the youth participants are learning, such as facts about drugs and their harmful effects. This component opens opportunities for family discussions about use of legal and illegal substances and family policies related to their use.

(10) Programs are long-term, over the school career, including the repetition necessary to reinforce the original prevention goals. School-based efforts directed at elementary and middle school students, for example, include booster sessions to help with critical transitions from middle to high school.

(11) Community programs that include media campaigns and policy changes, such as new regulations that restrict access to alcohol, tobacco, or other drugs, are accompanied by school and family interventions.

(12) Community programs strengthen norms against drug use in all drug abuse prevention settings, including the family, the school, and the community.

(13) Schools offer opportunities to reach all populations and serve as important settings for specific sub-populations at risk for drug abuse, such as children with behavior problems or learning disabilities and those who are at risk of leaving school before graduation.

(14) Programs should use formal and informal structures to receive and incorporate input from service recipients in the development, implementation and evaluation of prevention services.

(15) Programs are evaluated to determine outcomes and impact on the participants.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 18, 2003.

TRD-200305286

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Subchapter D. FACILITY LICENSURE INFORMATION

40 TAC §§148.401 - 148.409

The new rules are proposed under the Texas Health and Safety Code, §461.012(a)(15) which provides TCADA with the authority to adopt rules governing its functions, including rules that prescribe the policies and procedures it follows in administering any Commission programs and §461.0141 which provides TCADA with authority to adopt rules regarding purchase of services. The new rules are also proposed under Texas Health & Safety Code §461.0128 which provides that the Commission shall develop model program standards for substance abuse services for use by each state agency that provides or pays for substance abuse services. The new rules are also proposed under Texas Health & Safety Code, §464.009, which provides TCADA with the authority to adopt rules and standards for the licensure of chemical dependency treatment facilities.

The code affected by the proposed new rules is the Texas Health and Safety Code, Chapters 461 and 464.

§148.401.License Required.

(a) A facility providing or offering chemical dependency treatment in Texas shall have a license issued by the Commission unless it is:

(1) a facility maintained or operated by the Federal government or its agencies;

(2) a facility directly operated by the State of Texas;

(3) a chemical dependency treatment program approved by the Texas Department of Health within a licensed general hospital, specialty hospital, or private psychiatric facility;

(4) a pharmacotherapy program licensed by the Texas Department of Health;

(5) an educational program for intoxicated drivers;

(6) an individual who personally provides support services to chemically dependent individuals but does not offer or purport to offer chemical dependency treatment;

(7) the private practice of a licensed health care practitioner or licensed chemical dependency counselor who personally renders individual or group services within the scope of the practitioner's license and in the practitioner's office;

(8) a religious organization registered under Subchapter O of this title (relating to Faith-Based Chemical Dependency Treatment Programs); or

(9) a 12-step or similar self-help chemical dependency recovery program:

(A) that does not offer or purport to offer a chemical dependency treatment program;

(B) that does not charge program participants; and

(b) The facility shall have a License for each physical location at which it provides residential services or outpatient services.

§148.402.Variances.

(a) The Commission's executive director or designee may grant a temporary variance to a facility or group of facilities.

(b) To be eligible for a variance, a facility shall show:

(1) an alternative method is used to meet the intent of the rule; and

(2) the variance will not jeopardize the health, safety, or welfare of clients or compromise substance abuse services.

(c) The Commission's executive director or designee will determine if an alternative is equivalent to the written rule and when it will be accepted during licensure reviews.

(d) A variance cannot be granted for a statutory requirement.

(e) The grounds for, and term of, the variance shall be set forth in writing.

§148.403.New Licensure Application.

(a) An applicant for initial licensure shall submit a complete licensure application, operational plan as described in §148.502 of this title (relating to Operational Plan, Policies and Procedures), items outlined on the new applicant checklist, proof of liability insurance, and an application fee.

(b) Within 45 days of receipt of the application, the Commission will notify the applicant that the application is materially complete or specify the additional information required.

(c) The applicant shall submit all requested materials and correct any deficiencies identified by the Commission within specified time frames.

(d) If an on-site inspection is necessary, the Commission will conduct the inspection within 45 days of receiving a materially complete application packet. The Commission will notify the provider of any deficiencies identified during an on-site inspection within 30 days, and the provider shall provide evidence of sufficient corrective action within the timeframe specified in the inspection report.

(e) The Commission will issue the license within 45 days of receiving all required evidence of compliance and all required fees.

(f) If an applicant fails to provide evidence of compliance within six months from the date the application is received, the application will be denied. Six months after the date of denial, the applicant may reapply by submitting a new application and application fee.

(g) The applicant shall not provide chemical dependency treatment before receiving written notice of licensure approval.

(h) The facility shall display its licensure certificate prominently at each outpatient location and each approved residential site.

§148.404.Licensure Renewal.

(a) A license issued by the Commission expires two years from the date of issuance.

(b) The licensee shall file a request for renewal and pay the renewal fee at least 60 days before the license expires. Failure to file the required renewal and pay the renewal fee as specified may delay approval.

(c) The facility shall not provide services after the license expiration date unless it has submitted the application update and fee by the date of expiration.

§148.405.Changes in Status.

(a) A facility shall submit the appropriate application and fees and receive written approval before:

(1) adding a new detoxification service;

(2) adding a new residential site;

(3) moving to a new residential site; or

(4) increasing the number of beds in a residential program.

(b) If the facility fails to provide the information the Commission requires to process the change in status application within six months from the date of application, the application may be denied. The facility shall not reapply for six months from the date of denial.

(c) A facility shall also notify the Commission's licensure department in writing before: adding a new residential service, day treatment service, outpatient service; adding a new outpatient site or moving an outpatient site to a new location; providing services to a new age group or gender.

(d) A facility shall notify the Commission's facility licensure department prior to, or immediately after, a change in the organization's name, closure of a residential or outpatient location, decrease in the number of residential beds or discontinuance of a service.

§148.406.Inactive Status and Closure.

(a) Inactive Status. The Commission will automatically retire the license of a facility site in which services are suspended or not provided for more than 60 days, unless the facility sends a written request to place the license on inactive status. To be eligible for inactive status, the facility must be in good standing with no pending legal actions or investigations.

(1) If granted, inactive status is limited to 60 days. The licensee is responsible for all licensure fees and for proper maintenance of client records while on inactive status.

(2) To reactivate the license, the facility shall submit a written request to reactivate the license no later than the date the inactivation period expires.

(3) If the license is not reactivated, it will be automatically retired at the end of the 60 day deactivation period.

(b) Closure. The facility shall notify the Commission's facility licensure department in writing prior to or immediately upon closure of a chemical dependency treatment program.

(1) A license becomes invalid when a program closes. The licensure certificate shall be returned to the Commission's licensure department within 30 days.

(2) When a facility closes, the provider shall ensure that all clients are appropriately discharged or transferred before the Program closes and make appropriate arrangements for properly maintaining client records in compliance with Federal and State law and Commission rules.

§148.407.Licensure Inspection.

The Commission may conduct a scheduled or unannounced inspection or request materials for review at any time. The facility shall allow Commission staff to access the facility's grounds, buildings, and records. The facility shall allow Commission staff to interview members of the governing body, staff, and clients. The facility shall make all property, records, and Documents available upon request for examination, copy, or reproduction, on or off premises.

§148.408.Licensure Fees.

(a) A facility shall pay the full licensure fee for any licensure period during which it provides chemical dependency treatment. Failure to notify the Commission's licensure department of closure does not excuse a licensee from paying fees.

(b) Fees shall be paid in full by cashier's check, or money order.

(1) application fee--$100;

(2) base fee--$1,000;

(3) fee per residential site--$100;

(4) fee per bed--$30;

(5) maximum fee per facility (excluding application fees)--$4,000.

(d) A $25 fee is charged for a printed list of licensed facilities, a set of mailing labels for licensed facilities, or a replacement certificate.

(e) Licensure fees are not refundable.

§148.409.Action Against a License.

(a) The Commission may take action as describe herein against an applicant for licensure or a facility if the applicant, licensee, owner, member of the governing body, administrator, or clinical Staff member, or any other personnel associated with the applicant or licensee:

(1) has a documented history of client abuse, exploitation, or neglect;

(2) violates any provision of TEX. HEALTH & SAFETY CODE ANN. ch. 464 (Vernon 2001), or any other applicable statute, or a Commission rule; or

(3) owes the Commission money.

(b) Action taken may include:

(1) suspending or revoking a license;

(2) refusing to issue or renew a license;

(3) placing a facility on probation when the facility's license has been suspended;

(4) imposing an administrative penalty; and

(5) any other action allowed under the law or these rules.

(c) The Commission will determine the length of probation or suspension. The Commission may hold a hearing at any time and revoke probation or suspension.

(d) Surrender or expiration of a license does not interrupt an investigation or action taken against a license. The facility is not eligible to regain the license until all outstanding investigations, disciplinary proceedings, or hearings are resolved and the licensee is found to have acted in compliance with these rules.

(e) If a facility has its license revoked, its governing body, administrators, and management are not eligible to apply for, or be associated with an application for facility licensure until they have petitioned the Commission and demonstrated the following:

(1) they were not directly involved in, aware of, or responsible for the acts or omissions that were the basis of the revocation; or

(2) sufficient time has passed to allow the events that led to the revocation to no longer serve as the basis of denial of application for licensure.

(f) After an investigation has been initiated by the Commission, or a facility's license has been revoked or surrendered, a facility is not eligible to receive a faith-based exemption under Subchapter O of this title (relating to Faith-Based Chemical Dependency Programs) until two years have elapsed.

(g) Each provider shall purchase a bond sufficient in value to provide for the storage and protection of client records and data required to be maintained in the event of discharge of its clients and/or closing of its facility or program.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 18, 2003.

TRD-200305285

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Subchapter E. FACILITY REQUIREMENTS

40 TAC §§148.501 - 148.510

The new rules are proposed under the Texas Health and Safety Code, §461.012(a)(15) which provides TCADA with the authority to adopt rules governing its functions, including rules that prescribe the policies and procedures it follows in administering any Commission programs and §461.0141 which provides TCADA with authority to adopt rules regarding purchase of services. The new rules are also proposed under Texas Health & Safety Code §461.0128 which provides that the Commission shall develop model program standards for substance abuse services for use by each state agency that provides or pays for substance abuse services. The new rules are also proposed under Texas Health & Safety Code, §464.009, which provides TCADA with the authority to adopt rules and standards for the licensure of chemical dependency treatment facilities.

The code affected by the proposed new rules is the Texas Health and Safety Code, Chapters 461 and 464.

§148.501.Facility Organization.

(a) Governing Body. If incorporated, the facility shall have a governing body and shall have legal authority to operate in the State of Texas. If the organization is governed by a board of directors, the board shall meet with sufficient frequency to monitor the quality of care provided and maintain minutes for each meeting. The governing body shall ensure that members are provided training regarding their responsibilities and liabilities.

(b) Organizational Structure. The facility shall maintain current documentation of the organization's staffing structure, including lines of supervision and the number of staff members for each position.

(c) Facility Contact Information. The facility shall provide the Commission's facility licensure department with a current mailing address, electronic mail address (if any), contact name, and contact phone number in writing or through electronic mail and shall update that information in writing or through electronic mail when there are changes. The facility is deemed to have received any correspondence or notice mailed to the address provided.

§148.502.Operational Plan, Policies and Procedures.

(a) The facility shall operate according to an operational plan. The operational plan shall reflect:

(1) program purpose or mission statement;

(2) services and how they are provided;

(3) description of the population to be served; and

(4) goals and objectives of the program.

(b) The facility shall adopt and implement written policies and procedures as deemed necessary by the facility and as required herein. The policies and procedures shall contain sufficient detail to ensure compliance with all applicable Commission rules.

(c) The policy and procedure manual shall be current, consistent with program practices, individualized to the program, and easily accessible to all Staff at all times.

(d) Facilities housing children shall comply with requirements set forth in 40 TEX. ADMIN. CODE §§715.601-632 (2003)(relating to Minimum Standards for Group Day-Care Homes) or obtain a daycare license.

§148.503.Reporting Measures.

Facilities shall submit the following information annually in a format provided by the Commission, unless a current contract with TCADA is in effect:

(1) total number of clients served by diagnosis;

(2) gender of clients served;

(3) ethnicity of clients served;

(3) ages of clients served;

(4) primary and secondary drug at admission;

(5) discharge reason per treatment episode, including length of stay at time of discharge; and

(6) average percent of occupancy for each residential program.

§148.504.Quality Management.

The facility shall develop procedures and implement a quality management process. The procedures shall address at a minimum:

(1) goals and objectives that relate to the program purpose or mission statement;

(2) methods to review the progress toward the goals and a documented process to implement corrections or changes;

(3) a mechanism to review and analyze incident reports, monitor compliance with rules and other requirements, identify areas where quality is not optimal and procedures to analyze identified issues, implement corrections, and evaluate and monitor their ongoing effectiveness;

(4) methods of utilization review to ensure appropriate client placement, adequacy of services provided and length of stay; and

(5) documentation of the activities of the quality management process.

§148.505.General Environment.

(a) The facility shall comply with applicable requirements of the Americans with Disabilities Act (ADA). The facility shall maintain documentation that it has conducted a self-inspection to evaluate compliance and implemented a corrective action plan, as necessary, with reasonable time frames to address identified deficiencies.

(b) The facility shall have a certificate of occupancy from the local authority that reflects the current use by the occupant or documentation that the locality does not issue occupancy certificates.

(c) The site, including grounds, buildings, electrical and mechanical systems, appliances, equipment, and furniture shall be structurally sound, in good repair, clean, and free from health and safety hazards.

(d) The facility shall provide a safe, clean, well-lighted and well-maintained environment.

(e) The facility shall have adequate space, furniture, and supplies.

(f) The facility shall have private space for confidential interactions, including all group counseling sessions.

(g) The facility shall prohibit smoking inside facility buildings and vehicles and during structured program activities. If smoking areas are permitted, they shall be clearly marked as designated smoking areas and shall not be less than 15 feet from the building(s). Staff shall not provide or facilitate client access to tobacco products.

(h) The facility shall prohibit firearms and other weapons, alcohol, illegal drugs, illegal activities, and violence on the program site.

(i) Animals shall be properly vaccinated and supervised.

§148.506.Required Postings.

(a) The facility shall post a legible copy of the following documents in a prominent public location that is readily available to clients, visitors, and staff:

(1) the Client Bill of Rights;

(2) the Commission's current poster on reporting complaints and violations; and

(3) the client grievance procedure.

(b) These documents shall be displayed in English and in a second language(s) appropriate to the population(s) served at every location where services are provided.

§148.507.General Documentation Requirements.

(a) The facility shall keep complete, current documentation.

(b) All documents shall be factual and accurate.

(1) Authentication of paper records shall be an original signature that includes at least the first initial, last name, and credentials. Initials may be used if the client record includes a document that identifies all individuals initialing entries, including the full printed name, signature, credentials, and initials.

(2) Authentication of electronic records shall be a Digital Authentication Key.

(d) Documentation shall be permanent and legible.

(e) When it is necessary to correct a client record, incident report, or other document, the error shall be marked through with a single line, dated, and initialed by the writer.

(f) Records shall contain only those abbreviations included on the facility's list of approved abbreviations.

§148.508.Client Records.

(a) The facility shall establish and maintain a single record for every client beginning at the time of admission. The content of client records shall be complete, current, and well organized.

(b) The facility shall protect all client records and other client-identifying information from destruction, loss, tampering, and unauthorized access, use or disclosure.

(1) All active client records shall be stored at the facility. Inactive records, if stored off-site, shall be fully protected. All original client records shall be maintained in the State of Texas.

(2) Information that identifies those seeking services shall be protected to the same degree as information that identifies clients.

(3) Electronic client information shall be protected to the same degree as paper records and shall have a reliable backup system.

(d) Personnel shall keep records locked at all times unless authorized staff is continuously present in the immediate area.

(e) The facility shall ensure that all client records can be located and retrieved upon request at all times.

(f) The facility shall comply with Federal and State confidentiality laws and regulations, including 42 C.F.R pt. 2 (Federal regulations on the Confidentiality of Alcohol and Drug Abuse Patient Records), TEX. HEALTH & SAFETY CODE ANN. ch. 611 (Vernon 2001)(relating to Mental Health Records) and the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The facility shall also protect the confidentiality of HIV information as required in TEX. HEALTH & SAFETY CODE ANN. §81.103 (Vernon 2001)(relating to Confidentiality; Criminal Penalty).

(g) The facility shall not deny clients access to the content of their records except as provided by TEX. HEALTH & SAFETY CODE ANN. §611.0045 (Vernon 2001) and HIPAA.

(h) Client records shall be maintained for at least five years. Records of adolescent clients shall be maintained for at least five years after the client turns 18.

(i) If client records are microfilmed, scanned, or destroyed, the facility shall take steps to protect confidentiality. The facility shall maintain a record of all client records destroyed on or after September 1, 1999, including the client's name, record number, birth date, and dates of admission and discharge.

§148.509.Incident Reporting.

(a) The facility shall report to the Commission's investigations division, all allegations of client abuse, neglect, and exploitation. Acts constituting client abuse, neglect and exploitation are specifically described in §148.703 of this title (relating to Abuse, Neglect, and Exploitation).

(b) The facility shall complete an internal incident report for all client incidents, including:

(1) a violation of a client rights, including but not limited to, allegations of abuse, neglect and exploitation;

(2) accidents and injuries;

(3) medical emergencies;

(4) psychiatric emergencies;

(5) medication errors;

(6) illegal or violent behavior;

(7) loss of a client record;

(8) personal or mechanical restraint or seclusion;

(9) release of confidential information without client consent;

(10) fire;

(11) death of an active outpatient or residential client (on or off the program site);

(12) clients absent without permission from a residential program;

(13) suicide attempt by an active client (on or off the program site);

(14) medical and psychiatric emergencies that result in admission to an inpatient unit of a medical or psychiatric facility; and

(15) any other significant disruptions.

(c) The incident report shall be completed within 24 hours of the incident and shall provide a detailed description of the event, including the date, time, location, individuals involved, and action taken.

(d) The individual writing the report shall sign it and record the date and time it was completed.

(e) All incident reports shall be stored in a single, separate file.

(f) The facility shall have a designated individual responsible for reviewing incident reports and all incidents should be evaluated through the quality management process to determine opportunities to improve or address program and staff performance.

§148.510.Client Transportation.

(a) The facility shall have a written policy on the use of facility vehicles and/or staff to transport clients.

(b) If the facility allows the use of facility vehicles and/or staff to transport clients, it shall adopt transportation procedures which include the following.

(1) Any vehicle used to transport a client must have appropriate insurance coverage for business use with a current safety inspection sticker and license.

(2) All vehicles used to transport clients must be maintained in safe driving condition.

(3) Drivers must have a valid driver's license.

(4) Drivers and passengers must wear seatbelts at all times the vehicle is in operation as required by law.

(5) A vehicle shall not be used to transport more passengers than designated by the manufacturer.

(6) Drivers shall not use cell phones while driving.

(7) Use of tobacco products shall not be allowed in the vehicle.

(8) Every vehicle used for client transportation shall have a fully stocked first aid kit and an A:B:C fire extinguisher that are easily accessible.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 18, 2003.

TRD-200305293

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Subchapter F. PERSONNEL PRACTICES AND DEVELOPMENT

40 TAC §§148.601 - 148.603

The new rules are proposed under the Texas Health and Safety Code, §461.012(a)(15) which provides TCADA with the authority to adopt rules governing its functions, including rules that prescribe the policies and procedures it follows in administering any Commission programs and §461.0141 which provides TCADA with authority to adopt rules regarding purchase of services. The new rules are also proposed under Texas Health & Safety Code §461.0128 which provides that the Commission shall develop model program standards for substance abuse services for use by each state agency that provides or pays for substance abuse services. The new rules are also proposed under Texas Health & Safety Code, §464.009, which provides TCADA with the authority to adopt rules and standards for the licensure of chemical dependency treatment facilities.

The code affected by the proposed new rules is the Texas Health and Safety Code, Chapters 461 and 464.

§148.601.Hiring Practices.

(a) A facility whose personnel includes counselor interns shall be registered with the Commission as a clinical training institution and comply with all applicable requirements.

(b) The facility shall verify by telephone or letter and document the current status of all required credentials with the credentialing authority.

(d) The facility shall not hire or utilize an individual until it obtains and assesses a criminal background check from the Department of Public Safety. The facility shall use the criteria listed in TEX. OCC. CODE ANN. §53.022, §53.023 (Vernon 2002) to evaluate criminal history reports and make related employment decisions.

(e) The facility shall not hire an individual who has not passed a pre-employment drug test that meets criteria established by the Commission. This requirement does not restrict facilities from implementing random drug testing of its staff as permitted by law.

(f) The facility shall develop a job description which outlines job duties and minimum qualifications for all personnel.

(g) The facility shall maintain a personnel file for each employee, and all contractors, students and volunteers with any direct client contact which contains documentation demonstrating compliance with this section.

§148.602.Students and Volunteers.

(a) The facility shall ensure that students and volunteers comply with all applicable rules.

(b) Students and volunteers shall be qualified to perform assigned duties.

(c) Students and volunteers shall receive orientation and training appropriate to their qualifications and responsibilities.

(d) Students and volunteers shall be appropriately supervised.

§148.603.Training.

(a) Unless otherwise specified, video, manual, or computer-based training is acceptable if the supervisor discusses and documents the material with the Staff person in a face-to-face session to highlight key issues and answer questions.

(b) The facility shall maintain documentation of all required training.

(1) Documentation of external training shall include:

(A) date;

(B) number of hours;

(D) instructor's name; and

(E) signature of the instructor (or equivalent verification).

(2) The facility shall maintain documentation of all internal training. For each topic, the file shall include:

(A) an outline of the contents

(B) the name, credentials, relevant qualifications of the person providing the training, and

(3) For each group training session, the facility shall maintain on file a dated attendee sign-in sheet.

(c) Prior to performing their duties and responsibilities, the facility shall provide orientation to staff, volunteers, and students. This orientation shall include information addressing:

(1) TCADA rules;

(2) facility policies and procedures;

(3) client rights;

(4) client grievance procedures;

(5) confidentiality of client-identifying information (42 C.F.R. pt. 2; HIPAA);

(6) standards of conduct; and

(7) emergency and evacuation procedures.

(d) The following initial training(s) must be received within the first 30 Days of employment. Subsequent training must be completed as specified.

(1) Abuse, Neglect, and Exploitation. All personnel with any direct client contact shall receive face-to-face training as described in Appendix A which is attached hereto and incorporated herein as if set forth at length.

(2) HIV, Hepatitis B and C, Tuberculosis and Sexually Transmitted Diseases. All personnel with any direct client contact shall receive this training. The training shall be based on the Texas Commission on Alcohol and Drug Abuse Workplace and Education Guidelines for HIV and Other Communicable Diseases.

(A) The initial training shall be three hours in length.

(B) Staff shall receive annual updated information about these diseases.

(3) Cardio Pulmonary Resuscitation (CPR).

(A) all direct care staff in a residential program shall maintain current CPR and First Aid certification.

(B) Licensed health professionals and personnel in licensed medical facilities are exempt if emergency resuscitation equipment and trained response teams are available 24 hours a day.

(4) Nonviolent Crisis Intervention. All direct care staff in residential programs and outpatient programs shall receive this training. The face-to-face training shall teach staff how to use verbal and other non-physical methods for prevention, early intervention, and crisis management. The instructor shall have documented successful completion of a course for crisis intervention instructors or have equivalent documented training and experience.

(A) The initial training shall be four hours in length.

(B) Staff shall complete two hours annual training thereafter.

(5) Restraint and/or Seclusion. All direct care staff in residential programs that use restraint or seclusion shall have face-to-face training and demonstrate competency in the safe methods of the specific procedures. This includes programs that accept adolescent residential and emergency detentions.

(A) The initial training must be four hours in length.

(B) Staff shall complete four hours annual training thereafter.

(6) Intake, Screening and Admission Authorization. All staff who conduct intake, screening and authorize admission for applicants to receive program services shall complete training in the program's screening and admission procedures. The training shall include two hours of DSM diagnostic criteria for substance-related disorders, and other mental health diagnoses.

(A) The initial training shall be eight hours in length.

(B) Staff shall complete eight hours annual training thereafter.

(7) Self-administration of Medication. All personnel responsible for supervising clients in self-administration of medication, who are not credentialed to administer medication, shall complete this training before performing this task.

(A) Staff shall complete two hours initial one time training.

(B) The training shall be provided by a physician, pharmacist, physician assistant, or registered nurse before administering medication and shall include:

(i) prescription labels;

(ii) medical abbreviations;

(iii) routes of administration;

(iv) use of drug reference materials;

(v) storage, maintenance, handling, and destruction of medication;

(vi) documentation requirements; and

(vii) procedures for medication errors, adverse reactions, and side effects.

(8) Adolescent Training. All direct care staff in adolescent programs shall have or receive specialized education or training. Training shall be 20 hours in length and include chemical dependency problems specific to adolescent treatment, appropriate treatment strategies, including family engagement strategies, and emotional, developmental, and mental health issues for adolescents.

(9) Detoxification Training. All direct care staff in detoxification programs shall receive this training. The training shall be provided by a physician, physician assistant, advanced practice nurse, or registered nurse with at least one year of documented experience in detoxification.

(A) The initial training shall be four hours in length.

(B) The facility may accept documented training from another organization if completed during the year prior to employment and it meets Commission requirements.

(D) The training shall include:

(i) signs of withdrawal;

(ii) observation and monitoring procedures;

(iii) pregnancy-related complications (if the program admits women);

(iv) complications requiring transfer; and

(v) appropriate interventions; and frequently-used medications, including purpose, precautions, and side effects.

(10) Women and Children's Services Training. Service delivery staff and program administrators shall demonstrate expertise in addressing the needs of women and children. All service delivery staff shall receive periodic training regarding therapeutic issues relevant to women and Children.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 18, 2003.

TRD-200305292

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Subchapter G. CLIENT RIGHTS

40 TAC §§148.701 - 148.708

The new rules are proposed under the Texas Health and Safety Code, §461.012(a)(15) which provides TCADA with the authority to adopt rules governing its functions, including rules that prescribe the policies and procedures it follows in administering any Commission programs and §461.0141 which provides TCADA with authority to adopt rules regarding purchase of services. The new rules are also proposed under Texas Health & Safety Code §461.0128 which provides that the Commission shall develop model program standards for substance abuse services for use by each state agency that provides or pays for substance abuse services. The new rules are also proposed under Texas Health & Safety Code, §464.009, which provides TCADA with the authority to adopt rules and standards for the licensure of chemical dependency treatment facilities.

The code affected by the proposed new rules is the Texas Health and Safety Code, Chapters 461 and 464.

§148.701.Client Bill of Rights.

(a) The facility shall respect and protect clients' rights. The Client Bill of Rights for all facilities shall include:

(1) You have the right to accept or refuse treatment after receiving this explanation.

(2) If you agree to treatment or medication, you have the right to change your mind at any time (unless specifically restricted by law).

(3) You have the right to a humane environment that provides reasonable protection from harm and appropriate privacy for your personal needs.

(4) You have the right to be free from abuse, neglect, and exploitation.

(5) You have the right to be treated with dignity and respect.

(6) You have the right to appropriate treatment in the least restrictive setting available that meets your needs.

(7) You have the right to be told about the program's rules and regulations before you are admitted.

(8) You have the right to be told before admission:

(A) the condition to be treated;

(B) the proposed treatment;

(D) the probable health and mental health consequences of refusing treatment;

(E) other treatments that are available and which ones, if any, might be appropriate for you; and

(F) the expected length of stay.

(9) You have the right to a treatment plan designed to meet your needs, and you have the right to take part in developing that plan.

(10) You have the right to meet with staff to review and update the plan on a regular basis.

(11) You have the right to refuse to take part in research without affecting your regular care.

(12) You have the right not to receive unnecessary or excessive medication.

(13) You have the right to have information about you kept private and to be told about the times when the information can be released without your permission.

(14) You have the right to be told in advance of all estimated charges and any limitations on the length of services of which the facility is aware.

(15) You have the right to receive an explanation of your treatment or your rights if you have questions while you are in treatment.

(16) You have the right to make a complaint and receive a fair response from the facility within a reasonable amount of time.

(17) You have the right to complain directly to the Texas Commission on Alcohol and Drug Abuse at any reasonable time.

(18) You have the right to get a copy of these rights before you are admitted, including the address and phone number of the Texas Commission on Alcohol and Drug Abuse.

(19) You have the right to have your rights explained to you in simple terms, in a way you can understand, within 24 hours of being admitted.

(b) For residential sites, the Client Bill of Rights shall also include:

(1) You have the right not to be restrained or placed in a locked room by yourself unless you are a danger to yourself or others.

(2) You have the right to communicate with people outside the facility. This includes the right to have visitors, to make telephone calls, and to send and receive sealed mail. This right may be restricted on an individual basis by your physician or the person in charge of the Program if it is necessary for your Treatment or for security, but even then you may contact an attorney or the Texas Commission on Alcohol and Drug Abuse at any reasonable time.

(3) If you consented to treatment, you have the right to leave the facility within four hours of requesting release unless a physician determines that you pose a threat of harm to yourself and others.

(c) If a client's right to free communication is restricted under the provisions of paragraph (b)(2) of this section, the physician or program director shall document the clinical reasons for the restriction and the duration of the restriction in the client record. The physician or program director shall also inform the client, and, if appropriate, the client's consenter of the clinical reasons for the restriction and the duration of the restriction.

§148.702.Client Grievances.

(a) The facility shall have a written client grievance procedure.

(b) Staff shall give each client and consenter a copy of the grievance procedure within 24 hours of admission and explain it in clear, simple terms that the client understands.

(1) file a grievance about any violation of client rights or Commission rules;

(2) submit a grievance in writing and get help writing it if they are unable to read or write; and

(3) request writing materials, postage, and access to a telephone for the purpose of filing a grievance.

(d) The procedure shall also inform clients that they can submit a complaint directly to the Commission at any time and include the current mailing address and toll-free telephone number of the Commission's investigations division.

(e) The facility shall have a written procedure for staff to follow when responding to client grievances. The facility shall:

(1) evaluate the grievance thoroughly and objectively, obtaining additional information as needed;

(2) provide a written response to the client within seven days of receiving the grievance;

(3) take action to resolve all grievances promptly and fairly; and

(4) document all grievances, including the final disposition, and keep the documentation in a central file.

(f) The facility shall not:

(1) retaliate against clients who try to exercise their rights or file a grievance; or

(2) restrict, discourage, or interfere with client communication with an attorney or with the Commission for the purposes of filing a grievance.

§148.703.Abuse, Neglect, and Exploitation.

(a) Any person who receives an allegation or has reason to suspect that a client or participant has been, is, or will be abused, neglected, or exploited by any person shall immediately inform the Commission's investigations division and the provider's chief executive officer or designee. If the allegation involves the chief executive officer, it shall be reported directly to the provider's governing body.

(1) The person shall also report allegations of child abuse or neglect to the Texas Department of Protective and Regulatory Services as required by TEX. FAM. CODE ANN. §261.101 (Vernon 1996).

(2) The person shall also report allegations of abuse or neglect of an elderly or disabled individual to the Texas Department of Protective and Regulatory Services as required by TEX. HUM. RES. CODE ANN. §48.051 (Vernon Supp. 2003).

(b) If the allegation involves sexual exploitation, the chief executive officer shall comply with reporting requirements listed in TEX. CIV. PRAC. & REM. CODE ANN. §81.006 (Vernon 1997).

(c) The chief executive officer shall take immediate action to prevent or stop the abuse, neglect, or exploitation and provide appropriate care.

(d) The chief executive officer or designee shall ensure that a verbal report has been or is made to the Commission's investigations division as required in subsection (a) of this section.

(e) The person who reported the incident shall submit a written incident report to the chief executive officer within 24 hours.

(f) The chief executive officer shall send a written report to the Commission's investigations division within two business days after receiving notification of the incident. This report shall include:

(1) the name of the client or participant and the person the allegations are against;

(2) the information required in the incident report or a copy of the incident report;

(3) other individuals, organizations, and law enforcement notified.

(g) The chief executive officer or designee shall also notify the consenter. If the client is the consenter, family members may be notified only if the client gives written consent.

(h) The provider shall investigate the complaint and take appropriate action unless otherwise directed by the Commission's investigations division. The investigation and the results shall be documented.

(i) The governing body or its designee shall take action needed to prevent any confirmed incident from recurring.

(j) The provider shall:

(1) document all investigations and resulting actions and keep the documentation in a single, segregated file;

(2) have a written policy that clearly prohibits the abuse, neglect, and exploitation of clients and/or participants;

(3) enforce appropriate sanctions for confirmed violations; including, but not limited to, termination of personnel with confirmed violations of client or participant physical or sexual abuse or instances of neglect that result in client or participant harm.

§148.704.Program Rules.

(a) The facility shall establish therapeutically sound written program rules addressing client behavior designed to protect their health, safety, and welfare.

(b) The consequences for violating program rules shall be defined in writing and shall include clear identification of violations that may result in discharge. The consequences shall be reasonable, take into account the client’s diagnosis and progress in treatment, and shall not include:

(1) physical discipline or measures involving the denial of food, water, sleep, or bathroom privileges; or

(2) discipline that is authorized, supervised, or carried out by clients.

(c) At the time of admission, every client shall be informed verbally, and in writing, of the program rules and consequences for violating the rules.

(d) The facility shall enforce the rules fairly and objectively and shall not implement consequences for the convenience of Staff.

§148.705.Client Labor and Interactions.

(a) The facility shall not hire clients to fill Staff positions. Former clients are not eligible for employment at the facility until at least two years after documented discharge from active treatment from the facility.

(b) The facility shall not require clients to participate in any fund raising or publicity activities for the facility.

(c) The facility and its personnel shall not enter into a business or personal relationship with a client, give a personal gift to a client, or accept a personal gift of value from a client until at least two years after services to the client cease.

§148.706.Restraint and Seclusion.

(a) The governing body shall adopt a policy to either authorize or prohibit the use of personal restraint, mechanical restraint, and seclusion. All adolescent residential programs, and programs accepting emergency detentions shall authorize use of personal restraint. Any facility authorizing use of restraint or seclusion shall have a written procedure that ensures compliance with this section. Outpatient programs shall prohibit the use of restraint or seclusion, except as it relates to court commitment clients.

(b) In programs authorizing use of restraint or seclusion, direct care staff shall be trained as described in §148.603 of this title (relating to Training).

(c) Staff shall not use restraint or seclusion unless a client's behavior endangers the client or others and less restrictive methods have been tried and failed.

(d) Staff shall not use more force than is necessary to prevent imminent harm and shall ensure the safety, well-being, and dignity of clients who are restrained or secluded, including attention for personal needs.

(e) Staff shall obtain authorization from the supervising Qualified Credentialed Counselor (QCC) before starting restraint or seclusion or as soon as possible after implementation.

(1) The facility shall not use standing authorizations for restraint or seclusion.

(2) Authorization for mechanical restraint or seclusion shall be based on a face-to-face evaluation.

(3) Each authorization shall include a specific time limit, not to exceed 12 hours.

(f) When the client has been safely restrained or secluded, staff shall tell the client what behavior and timeframes are required for release and shall release the client as soon as the criteria are met.

(g) Clinical staff shall review and document alternative strategies for dealing with behaviors necessitating the use of restraint or seclusion for an individual client two or more times in any 30-day period.

(h) The chief executive officer of the facility or designee shall review all incident reports involving restraint or seclusion and take action to address unwarranted use of these measures.

(i) A client held in restraint shall be under continuous direct observation. The facility shall ensure adequate circulation during restraint and shall only use devices designed for therapeutic restraint.

(j) Seclusion rooms shall be constructed to prevent clients from harming themselves and shall allow staff to observe clients easily in all parts of the room. When a client is in seclusion, staff shall conduct a visual check every 15 minutes.

(k) Staff shall record the following information in the client record within 24 hours:

(1) the circumstances leading to the use of restraint or seclusion;

(2) the specific behavior necessitating the restraint or seclusion and the behavior required for release;

(3) less restrictive interventions that were tried before restraint or seclusion began;

(4) the signed authorization of the supervising QCC;

(5) the names of the Staff members who implemented the restraint or seclusion;

(6) the date and time the procedure began and ended;

(7) the behavior and timeframes required for release;

(8) the client's response;

(9) observations made, including the 15 minute checks; and

(10) attention given for personal needs.

§148.707.Responding to Emergencies.

(a) The facility shall ensure that staff have the training and resources necessary to protect the health and safety of clients and other individuals during medical and psychiatric emergencies.

(b) The facility shall have written procedures for responding to medical and psychiatric emergencies.

(d) The facility shall have fully stocked first aid supplies that are visible, labeled and easy to access.

§148.708.Searches.

(a) All facilities shall adopt a written policy on client searches. Client searches include personal searches and searches of a client's property or sleeping quarters. If client searches are allowed, the facility shall adopt a written search procedure that ensures the protection of client rights.

(b) Client searches may only be conducted to protect the health, safety, and welfare of clients.

(c) Searches shall be conducted in a professional manner that maintains respect and dignity for the client. The facility shall not conduct a directly observed strip search of any client.

(d) A witness shall be present during all client searches.

(e) Staff and witnesses involved in a personal search must be the same gender as the client.

(f) All Client searches shall be documented in the client record, including the reason for the search, the result of the search, and the signatures of the individual conducting the search and the witness.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 18, 2003.

TRD-200305291

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Subchapter H. SCREENING AND ASSESSMENT

40 TAC §§148.801 - 148.805

The new rules are proposed under the Texas Health and Safety Code, §461.012(a)(15) which provides TCADA with the authority to adopt rules governing its functions, including rules that prescribe the policies and procedures it follows in administering any Commission programs and §461.0141 which provides TCADA with authority to adopt rules regarding purchase of services. The new rules are also proposed under Texas Health & Safety Code §461.0128 which provides that the Commission shall develop model program standards for substance abuse services for use by each state agency that provides or pays for substance abuse services. The new rules are also proposed under Texas Health & Safety Code, §464.009, which provides TCADA with the authority to adopt rules and standards for the licensure of chemical dependency treatment facilities.

The code affected by the proposed new rules is the Texas Health and Safety Code, Chapters 461 and 464.

§148.801.Screening.

(a) To be eligible for admission to a treatment program, an individual shall meet the DSM criteria for substance abuse or dependence (or substance withdrawal or intoxication in the case of a detoxification program). The facility shall use a validated screening instrument appropriate for the target population, individual's age, developmental level, culture and gender which includes the Texas Department of Insurance (TDI) criteria to determine eligibility for admission or referral.

(b) The screening process shall collect other information as necessary to determine the type of services that are required to meet the individual’s needs. This may necessitate the administration of all or part of validated assessment instruments.

(d) Sufficient documentation shall be maintained in the client record to support the diagnosis and justify the referral/placement decision. Documentation shall include the date of the screening and the signature and credentials of the Qualified Credentialed Counselor (QCC) supervising the screening process.

(e) For admission to a detoxification program, the screening will be conducted by a physician, physician assistant, advanced practice nurse, or registered nurse.

(f) For admission to all other treatment programs, the screening will be conducted by a counselor or counselor intern.

§148.802.Admission Authorization and Consent to Treatment.

(a) A QCC shall authorize each admission in writing and specify the level of care to be provided. If the screening counselor or intern is not qualified to authorize admission, the QCC shall review the results of the screening and meet with the applicant face-to-face before authorizing admission. The authorization shall be documented in the client record and shall contain sufficient documentation to support the diagnosis and the placement decision.

(b) The facility shall obtain written authorization from the consenter before providing any treatment or medication. The consent form shall be dated and signed by the client, the consenter, and the staff person providing the information, and shall document that the client and consenter have received and understood the following information:

(1) the specific condition to be treated;

(3) the expected benefits of treatment;

(4) the probable health and mental health consequences of not consenting;

(5) the side effects and risks associated with the treatment;

(6) any generally accepted alternatives and whether an alternative might be appropriate;

(7) the qualifications of the staff that will provide the treatment;

(8) the name of the primary counselor;

(9) the client grievance procedure;

(10) the Client Bill of Rights as specified in §148.701 of this title;

(11) the program rules, including rules about visits, telephone calls, mail, and gifts, as applicable;

(12) violations that can lead to disciplinary action or discharge;

(13) any consequences or searches used to enforce program rules;

(14) the estimated average daily charge, including an explanation of any services that may be billed separately;

(15) the facility's services and treatment process; and

(16) opportunities for family to be involved in treatment.

(c) This information shall be explained to the client and consenter in simple, non-technical terms. If an emergency or the client's physical or mental condition prevents the explanation from being given or understood by the client within 24 hours, staff shall document the circumstances in the client record and present the explanation as soon as possible. Documentation of the explanation shall be dated and signed by the client, the consenter, and the staff person providing the explanation.

(d) The client record shall include a copy of the Client Bill of Rights dated and signed by the client and consenter.

(e) If possible, all information shall be provided in the consenter's primary language.

(f) If an individual is not admitted, the program shall refer and assist the applicant to obtain appropriate services.

(g) When an applicant is denied admission, the facility shall maintain documentation signed by the examining QCC which includes the reason for the denial and all referrals made.

§148.803.Assessment.

(a) A QCC shall conduct and document a comprehensive psychosocial assessment with the client admitted to the facility. The assessment shall document and elicit enough information about the client's past and present status to provide a thorough understanding of the following areas:

(1) presenting problems resulting in admission;

(2) alcohol and other drug use;

(3) psychiatric and chemical dependency treatment;

(4) medical history and current health status, to include Tuberculosis (TB), HIV and other sexually transmitted disease (STD) information;

(5) relationships with family;

(6) social and leisure activities;

(7) education and vocational training;

(8) employment history;

(9) legal problems;

(10) mental/ emotional functioning; and

(11) strengths and weaknesses.

(b) The assessment shall result in a comprehensive listing of the client's problems, needs, and strengths.

(c) The assessment shall result in a comprehensive diagnostic impression. The diagnostic impression shall include all DSM Axes I, IV, and V at a minimum, and Axes II and III, as allowed by the QCC's license and scope of practice.

(d) If the assessment identifies a potential mental health problem, the facility shall obtain a mental health assessment and seek appropriate mental health services when resources for mental health assessments and/or services are available internally or through referral at no additional cost to the program. These services shall be provided by a facility authorized to provide such services or a qualified professional as described in §148.901 of this title (relating to Treatment Program Services).

(e) The assessment shall be signed by a QCC and filed in the client record within three individual service days of admission.

(f) The program may accept an evaluation from an outside source if:

(1) it meets the criteria set forth herein;

(2) it was completed during the 30 days preceding admission or is received directly from a facility that is transferring the client; and

(3) a counselor reviews the information with the client and documents an update.

(g) For residential clients, a licensed health professional shall conduct a health assessment of the client's physical health status within 96 hours of admission. The facility may accept a health assessment from an outside source completed no more than 30 days before admission or received directly from a transferring facility. If the client has any physical complaints or indications of medical problems, the client shall be referred to a physician, physician assistant, or advanced practice nurse for a history and physical examination. The examination, if needed, shall be completed within a reasonable time frame and the results filed in the client record.

§148.804.Treatment Planning, Implementation and Review.

(a) The counselor and client shall work together to develop and implement an individualized, written treatment plan that identifies services and supports needed to address problems and needs identified in the assessment. When appropriate, family shall also be involved.

(1) When the client needs services not offered by the facility, appropriate Referrals shall be made and documented in the client record. When feasible, other QCCs or mental health professionals serving the client from a referral agency should participate in the treatment planning process.

(2) The client record shall contain justification when identified needs are temporarily deferred or not addressed during treatment.

(b) The treatment plan shall include goals, objectives, and strategies.

(1) Goals shall be based on the client's problems/needs, strengths, and preferences.

(2) Objectives shall be individualized, realistic, measurable, time specific, appropriate to the level of treatment, and clearly stated in behavioral terms.

(3) Strategies shall describe the type and frequency of the specific services and interventions needed to help the client achieve the identified goals and shall be appropriate to the level of intensity of the program in which the client is receiving treatment.

(c) The treatment plan shall include initial plans for discharge. The discharge plans shall be updated as the client progresses through treatment.

(d) The treatment plan shall include the projected length of stay.

(e) The treatment plan shall identify the client's primary counselor, and shall be dated and signed by the client, and the counselor. When the treatment plan is conducted by an intern or graduate, a QCC shall review and sign the treatment plan.

(f) The treatment plan shall be completed and filed in the client record within three individual service days of admission.

(g) The treatment plan shall be evaluated on a regular basis and revised as needed to reflect the ongoing reassessment of the client's problems, needs, and response to treatment.

(h) The primary counselor shall meet with the client to review and update the treatment plan at appropriate intervals defined in writing by the program. Treatment plan reviews shall be conducted weekly in residential programs and monthly in outpatient programs.

(i) The treatment plan review shall include:

(1) an evaluation of the client's progress toward each goal and objective;

(2) revision of the goals, objectives; and

(3) justifications of continued length of stay.

(j) Treatment plan reviews shall be dated and signed by the client, the counselor and the supervising QCC, if applicable.

(k) When a client’s intensity of service is changed, the client record shall contain:

(1) clear documentation of the decision signed by a QCC, including the rationale and the effective date;

(2) a revised treatment plan; and

(3) documentation of coordination activities with receiving treatment provider.

(l) Program staff shall document all treatment services (counseling, chemical dependency education, and life skills training) in the client record within 72 hours, including the date, nature, and duration of the contact, and the signature and credentials of the person providing the service.

(1) Education, life skills training, and group counseling notes shall also include the topic/issue addressed.

(2) Individual counseling notes shall include the goals addressed, clinical observation and new issues or needs identified during the session.

§148.805.Discharge.

(a) The counselor and client/consenter shall develop and implement an individualized discharge plan. The plan shall include the criteria for discharging or transferring the client to another level of care. The Texas Department of Insurance criteria shall be used as a general guideline for determining when clients are appropriate for transfer or discharge, but individualized criteria shall be specifically developed for each client.

(b) Discharge plans shall be updated as the client progresses through treatment and shall address the continued appropriateness of the current treatment level.

(1) When a client is referred or transferred to another chemical dependency or mental health service provider for continuing care, the facility shall contact the receiving program before the client is discharged to make arrangements for the transfer.

(2) Coordination activities shall be documented in the client record, including timeframe for client being able to access needed Services and any constraints associated with the referral.

(3) With proper client consent, the facility shall provide the receiving program with copies of relevant parts of the client's record.

(d) The program shall involve the client's family or an alternate support system in the discharge planning process when appropriate.

(e) Discharge planning shall be completed before the client's scheduled discharge.

(f) A written discharge plan shall be developed to address ongoing client needs, including:

(1) individual goals or activities to sustain recovery;

(2) referrals; and

(3) recovery maintenance services, if applicable.

(g) The completed discharge plan shall be dated and signed by the counselor, the client, and the consenter (if applicable).

(h) The program shall give the client and consenter a copy of the plan, and file the original signed plan in the client record.

(i) The program shall complete a discharge summary for each client within 30 Days of discharge. The discharge summary shall be signed by a QCC and shall include:

(1) dates of admission and discharge;

(2) needs and problems identified at the time of admission, during treatment, and at discharge;

(3) services provided;

(4) assessment of the client's progress towards goals;

(5) reason for discharge; and

(6) referrals and recommendations, including arrangements for recovery maintenance.

(j) The facility shall contact each client no later than 90 Days after discharge from the facility and document the individual's current status or the reason the contact was unsuccessful.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 18, 2003.

TRD-200305290

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Subchapter I. TREATMENT PROGRAM SERVICES

40 TAC §§148.901 - 148.911

The new rules are proposed under the Texas Health and Safety Code, §461.012(a)(15) which provides TCADA with the authority to adopt rules governing its functions, including rules that prescribe the policies and procedures it follows in administering any Commission programs and §461.0141 which provides TCADA with authority to adopt rules regarding purchase of services. The new rules are also proposed under Texas Health & Safety Code §461.0128 which provides that the Commission shall develop model program standards for substance abuse services for use by each state agency that provides or pays for substance abuse services. The new rules are also proposed under Texas Health & Safety Code, §464.009, which provides TCADA with the authority to adopt rules and standards for the licensure of chemical dependency treatment facilities.

The code affected by the proposed new rules is the Texas Health and Safety Code, Chapters 461 and 464.

§148.901.Requirements Applicable to All Treatment Services.

(a) Each client's treatment shall be based on a treatment plan developed from the client's comprehensive assessment.

(b) Group counseling sessions are limited to a maximum of 16 clients. Group education and life skills training sessions are limited to a maximum of 35 clients. This limit does not apply to multi-family educational groups, seminars, outside speakers, or other events designed for a large audience.

(c) Chemical dependency education and life skills training shall follow a written curriculum. All educational sessions shall include client participation and discussion of the material presented.

(d) The program shall provide education about Tuberculosis (TB), HIV, Hepatitis B and C, and sexually transmitted diseases (STDs) based on the Texas Commission on Alcohol and Drug Abuse Workplace and Education Guidelines for HIV and Other Communicable Diseases.

(e) The program shall provide education about the health risks of tobacco products and nicotine addiction.

(f) The program shall provide access to screening for TB and testing for HIV antibody, Hepatitis C, and STDs.

(1) HIV antibody testing shall be carried out by an entity approved by the Texas Department of Health.

(2) If a client tests positive, the program shall refer the client to an appropriate health care provider.

(g) The program shall facilitate access to physical health, mental health, and ancillary services if those services are not available through the program and are necessary to meet treatment goals and shall document these efforts.

(h) Individuals shall not be denied admission or discharged from treatment because they are taking prescribed medication.

(i) The facility shall maintain an adequate number of qualified staff to comply with licensure rules, provide appropriate and individualized treatment, and protect the health, safety, and welfare of clients.

(j) All personnel shall receive the training and supervision necessary to ensure compliance with Commission rules, provision of appropriate and individualized treatment, and protection of client health, safety and welfare.

(k) Direct care staff shall be awake and on site during all hours of program operation.

(l) Residential direct care staff included in staff-to-client ratios shall not have job duties that prevent ongoing and consistent client supervision.

(m) Residential programs shall have at least one counselor on duty at least eight hours a day, six days a week.

(n) Clients in residential programs shall have an opportunity for eight continuous hours of sleep each night. Staff shall conduct and document at least three checks while clients are sleeping.

(o) Individuals responsible for planning, directing, or supervising treatment programs shall be QCCs. The clinical program director must have at least two years of post-licensure experience providing chemical dependency treatment.

(p) Chemical dependency counseling must be provided by a qualified credentialed counselor (QCC), graduate, or counselor intern. Chemical dependency education and life skills training shall be provided by counselors or individuals who have the specialized education and expertise.

(q) All counselor interns shall work under the direct supervision of a QCC as required in Chapter 150 of this title (relating to Counselor Licensure).

(r) Qualified mental health professionals acting as QCCs shall have a minimum of 2,000 hours of documented work experience under the supervision of a licensed chemical dependency counselor.

§148.902.Requirements Applicable to Detoxification Services.

(a) A facility providing detoxification Services shall ensure every individual admitted to a detoxification program meets the DSM criteria for substance intoxication or withdrawal.

(b) All detoxification programs shall ensure continuous access to emergency medical care.

(c) The program shall have a medical director who is a licensed physician. The medical director shall be responsible for admission, diagnosis, medication management, and client care.

(d) The medical director or his/her designee (physician assistant, or advanced practice nurse) shall approve all medical policies, procedures, guidelines, tools, and the medical content of all forms, which shall include:

(1) screening instruments and procedures;

(2) protocol or standing orders for each major drug category of abusable drugs (opiates, alcohol and other sedative-hypnotic/anxiolytics, inhalants, stimulants, hallucinogens) that are consistent with guidelines published by nationally recognized organizations (e.g., Substance Abuse and Mental Health Services Administration, American Society of Addiction Medicine, American Academy of Addiction Psychology).

(3) procedures to deal with medical emergencies;

(4) medication and monitoring procedures for pregnant women that address effects of detoxification and medications used on the fetus; and

(5) special consent forms for pregnant women identifying risks inherent to mother and fetus.

(e) The medical director or his/her designee (physician assistant, advanced practice nurse) shall authorize all admissions, conduct a face-to-face examination, to include both a history and physical examination of each applicant for services to establish the Axis I diagnosis, assess level of intoxication or withdrawal potential, and determine the need for treatment and the type of treatment to be provided to reach a placement decision.

(1) The examination shall identify potential physical and mental health problems and/or diagnoses that warrant further assessment.

(2) The authorization and examination shall be documented in the client record and shall contain sufficient documentation to support the diagnoses and the placement decision. If the physician determines an admission was not appropriate, the client shall be transferred to an appropriate service provider.

(3) The face-to-face examination (history and physical examination) and signed orders of admission shall occur within 24 hours of admission.

(4) The program may accept an examination completed during the 24 hours preceding admission if it is approved by the program's medical director or designee and includes the elements of (e)(1)-(2)of this section. The program may not require a client to obtain a history and physical as a condition of admission.

(5) Detoxification programs shall have a licensed vocational nurse or registered nurse On duty for at least eight hours every day and a physician or designee on call 24 hours a day.

(6) Detoxification programs shall ensure that detoxification services are accessible at least 16 hours per day, seven days per week.

(f) Residential and ambulatory (outpatient) detoxification programs shall provide monitoring to manage the client's physical withdrawal symptoms. Monitoring shall be conducted at a frequency consistent with the degree of severity of the client's withdrawal symptoms, the drug(s) from which the client is withdrawing, and/or the level of intoxication of the client. This information will be documented in the client's record and reflected in the client's orders.

(1) Monitoring shall include:

(A) changes in mental status;

(B) vital signs; and

(2) Use of instruments such as the Clinical Institute Withdrawal Assessment-Alcohol, revised (CIWA-Ar) for alcohol and sedative hypnotic withdrawal and the "clinician's assessment" in the Behavioral Health Integrated Provider System (BHIPS) is recommended.

(3) More intensive monitoring is required for clients with a history of severe withdrawal symptoms (e.g. a history of hallucinosis, delirium tremors, seizures, uncontrolled vomiting/dehydration, psychosis, inability to tolerate withdrawal symptoms, self harming attempts), or the presence of current severe withdrawal symptoms and/or co-occurring medical and psychiatric disorders.

(4) At a minimum, monitoring should be done every four hours in residential detoxification programs for the first 72 hours and as ordered by the medical director or designee thereafter, dependent on the client's signs and symptoms.

(5) Medication should be available to manage withdrawal/intoxication from all classes of abusable drugs.

(6) Medication "regimens", "protocols" or standing orders can be used, but detoxification should be tailored to each client's need based on vital signs and symptom severity (objective and subjective) and noted in the client's record.

(7) Ambulatory detoxification should have clear documentation by the physician or designee that the client's symptoms are or are expected to be of a severity that necessitates a minimum of once a day monitoring.

(g) In addition to the management of withdrawal and intoxicated states, detoxification programs shall provide services, including counseling, which are designed to:

(1) assess the client's readiness for change;

(2) offer general and individualized information on substance abuse and dependency;

(3) enhance client motivation;

(4) engage the client in treatment; and

(5) include a detoxification plan that contains the goals of successful and safe detoxification as well as transfer to another intensity of treatment. At least one daily individual session by the clinical staff, QCC or counselor intern with the client will be conducted.

(h) Ambulatory detoxification shall not be a stand alone service and services shall be provided in conjunction with outpatient treatment services. When treatment services are not available in conjunction with ambulatory detoxification services, the ambulatory detoxification program shall arrange for them.

(i) Bunk beds shall not be used in residential detoxification programs.

(j) In residential programs, direct care staff shall be On duty where the clients are located 24 hours a Day.

(1) During day and evening hours, at least two staff shall be On duty for the first 12 clients, with one more staff on duty for each additional one to 16 clients.

(2) At night, at least one staff member with detoxification training shall be On duty for the first 12 clients with one more staff on duty for each additional one to 16 clients.

(k) Clients who are not in withdrawal but meet the DSM criteria for substance dependence may be admitted to detoxification services for 72 hours for crisis stabilization.

(l) Crisis stabilization is appropriate for clients who have diagnosed conditions that result in current emotional or cognitive impairment in clients such that they would not be able to participate in a structured and rigorous schedule of formal chemical dependency treatment.

(1) The specific client signs and symptoms that meet the DSM or other medical criteria for the disorder must be documented in the client record.

(2) Documentation must also include what symptoms are precluding the client from participating in treatment and the manner in which they are to be resolved.

§148.903.Requirements Applicable to Intensive Residential and Day Treatment Services.

(a) Residential Treatment provides 24-hour per day, 7 days per week multidisciplinary professional clinical support to facilitate recovery from addiction. Clients are housed in a residential site. Comprehensive chemical dependency treatment services offer a structured therapeutic environment.

(b) The facility shall ensure access to the full continuum of treatment services and will ensure sufficient treatment intensity to achieve treatment plan goals. Intensity and content of treatment shall be appropriate to the client's needs and consistent with generally accepted placement guidelines and standards of care.

(c) Each individual admitted to intensive residential services shall be appropriate for this treatment setting, with written justification to support the admission.

(d) Intensive residential shall provide an average of at least 30 hours of treatment services per week for each client, comprised of at least ten hours of chemical dependency counseling, including two hours of individual counseling, nine hours of group Counseling, and 19 hours of additional counseling, chemical dependency education and life skills training (at least 5 of these hours shall be during weekends).

(e) In adult intensive residential programs, the direct care staff-to-client ratio shall be at least 1:16 when Clients are awake and 1:32 during sleeping hours.

(f) In intensive residential programs counselor caseloads shall not exceed ten clients for each counselor.

(g) Adult supportive residential shall provide at least seven hours of treatment services per week for each client, comprised of at least one hour of individual counseling and 6 hours of group counseling per week.

(h) In adult supportive residential programs, the direct care staff-to-client ratio shall be at least 1:20 when clients are awake and 1:50 during sleeping hours.

(i) In supportive residential programs counselor caseloads shall not exceed 20 clients per counselor.

§148.904.Requirements for Outpatient Treatment Programs.

(a) Outpatient programs are designed for clients who do not require the more structured environment of residential treatment to maintain sobriety.

(b) Outpatient programs shall ensure access to full continuum of care and ensure sufficiency of treatment intensity to achieve treatment plan goals. Intensity and content of treatment shall be appropriate to the client's needs and consistent with generally accepted placement guidelines and standards of care.

(c) Each individual admitted to an outpatient program shall be appropriate for this treatment setting, with written justification to support the admission.

(d) Treatment includes individualized treatment planning based on a comprehensive assessment, educational and process groups, and individual counseling.

(e) Each client's progress is assessed regularly by clinical staff to help determine the length and intensity of the program for that client.

§148.905.Additional Requirements for Adolescent Programs.

(a) Facilities providing adolescent residential services shall:

(1) maintain separation between adults and adolescents;

(2) have separate sleeping areas, bedrooms, and bathrooms for adults and adolescents, and for males and females;

(3) provide access to education approved by the Texas Education Agency within three school days of admission when treatment is expected to last more than 14 Days;

(4) provide planned, structured activities during evenings and weekends in addition to the required treatment services. Recreational and leisure activities shall be included in the structured time. The minimum number of additional hours is 15;

(5) ensure the direct care staff-to-client ratio is at least 1:8 during waking hours (including program-sponsored activities away from the facility) and 1:16 during sleeping hours;

(6) ensure clients are under direct supervision at all times. During sleeping hours, staff shall conduct and document hourly bed checks;

(7) facilitate regular communication between an adolescent client and the client's family and shall not arbitrarily restrict any communications without clear individualized clinical justification documented in the client record; and

(8) have written procedures addressing notification of parents or guardians in the event an adolescent leaves a residential program without authorization.

(b) Facilities providing outpatient services shall:

(1) maintain separation between adults and adolescents; and

(2) provide access to education approved by the Texas Education Agency within three school days of admission when treatment is expected to last more than 14 days, if required by law.

(1) ensure the program's treatment services, lectures, and written materials are age-appropriate and easily understood by clients; and

(2) involve the client's family or an alternate support system in the treatment process or document why this is not possible.

(d) Adolescent programs may serve children 13 to 17 years of age. However, young adults aged 18 to 21 may be admitted to an adolescent program when the screening process indicates the individual's needs, experiences, and behavior are similar to those of adolescent clients.

(e) Adult programs serve individuals 18 years of age or older. However, adolescents aged 17 may be admitted to an adult program when they are referred by the adult criminal justice system or when the screening process indicates the individual's needs, experiences, and behavior are similar to those of adult clients.

(f) Every exception to the general age requirements shall be clinically justified and documented and approved in writing by a QCC.

§148.906.Access to Services for COPSD Clients.

(a) In determining an individual's initial and ongoing eligibility for any service, an entity may not exclude an individual based on the following factors:

(1) the individual's past or present mental illness;

(2) medications prescribed to the individual in the past or present;

(3) the presumption of the individual's inability to benefit from treatment; or

(4) the individual's level of success in prior treatment episodes.

(b) Providers must ensure that a client's refusal of a particular service does not preclude the client from accessing other needed mental health or substance abuse services.

(c) Providers must establish and implement procedures to ensure the continuity between screening, assessment, treatment and referral services provided to clients.

§148.907.Additional Requirements for Co-Occurring Psychiatric and Substance Use Disorders Programs.

(a) The services provided to a client with co-occurring psychiatric and substance use disorders (COPSD) must:

(1) address both psychiatric and substance use disorders;

(2) be provided within established practice guidelines for this population; and

(3) facilitate individuals in accessing available services they need and choose, including self-help groups.

(b) The services provided to a client with COPSD must be provided by staff who are competent in the areas identified in §148.908 of this title (relating to Specialty Competencies of Staff Providing Services to Individuals with COPSD).

§148.908.Specialty Competencies of Staff Providing Services to Clients with COPSD.

(a) Providers must ensure that services to clients are age-appropriate and are provided by staff within their scope of practice who have the following minimum knowledge, technical, and interpersonal competencies prior to providing services.

(1) Knowledge competencies:

(A) knowledge of the fact that psychiatric and substance use disorders are potentially recurrent relapsing disorders, and that although abstinence is the goal, relapses can be opportunities for learning and growth;

(B) knowledge of the impact of substance use disorders on developmental, social, and physical growth and development of children and adolescents;

(D) knowledge of the current Diagnostic and Statistical Manual of Mental Disorders (DSM) diagnostic criteria for psychiatric disorders and substance use disorders and the relationship between psychiatric disorders and substance use disorders;

(E) knowledge regarding the increased risks of self-harm, suicide, and violence in individuals;

(F) knowledge of the elements of an integrated treatment plan and community support plan for individuals;

(G) basic knowledge of pharmacology as it relates to individuals with a mental disorder;

(H) basic understanding of the neurophysiology of addiction;

(I) knowledge of the phases of recovery for individuals;

(J) knowledge of the relationship between COPSD and DSM Axis III disorders; and

(K) knowledge of self-help in recovery.

(2) Technical competencies:

(A) ability to perform age-appropriate assessments of clients; and

(B) ability to formulate an individualized Treatment plan and community support plan for clients.

(3) Interpersonal competencies:

(A) ability to tailor interventions to the process of recovery for clients;

(B) ability to tailor interventions with readiness to change; and

(b) Within 90 days of the effective date of this rule, providers must ensure that staff who provide services to clients with COPSD have demonstrated the competencies described in subsection (a) of this section. These competencies may be evidenced by compliance with current licensure requirements of the governing or supervisory boards for the respective disciplines involved in serving clients with COPSD or by documentation regarding the attainment of the competencies described in subsection (a) of this section.

§148.909.Screening, Assessment, and Treatment Planning of Services to Clients with COPSD.

(a) The treatment plan must identify services to be provided and must include measurable outcomes that address COPSD.

(b) The treatment plan must identify the family members' need for education and support services related to the client's mental illness and substance abuse and a method to facilitate the family members' receipt of the needed education and support services.

§148.910.Treatment Services for Women and Children.

(a) Clients shall receive gender-specific services in female-only specialized programs.

(b) When appropriate, pre-admission service coordination shall be provided to reduce barriers to treatment, enhance motivation, stabilize life situations, and facilitate engagement in treatment.

(c) Services shall address relationship issues, including past or current experience with sexual, physical, and emotional abuse.

(d) Clients shall receive access to appropriate primary medical care, including prenatal care and reproductive health education and services.

(e) Pregnant clients, women with children in custody, and women with dependent children shall receive parenting education and support cervices.

(f) Women and their dependent children shall be treated as a unit, and both the woman and her children will be admitted into treatment when appropriate.

(g) Children shall receive services to address their needs and support healthy development, including primary pediatric care, early childhood intervention services, substance abuse prevention services, and/or other therapeutic interventions.

(h) Provisions for daycare are as follows:

(1) On-site day care shall comply with 40 TEX. ADMIN. CODE §§715.601-632 (2003)(relating to Minimum Standards for Group Day-Care Homes).

(2) Off-site contracted daycare providers shall be licensed by the Texas Department of Protective and Regulatory Services.

(3) If a center has an attendance of more than 30 children at lunch or dinner time, staff shall be provided for meal preparation, serving and cleanup. The staff providing meal services shall not be included in staff to child ratios during this time.

(i) The program shall assist the parent/guardian as necessary to ensure educational opportunities for school age children in accordance with the requirements of the Texas Education Agency.

(j) School age children shall have access and transport to school.

(k) The program shall document any services provided to children, including daycare and community support. The record shall document the child's developmental, physical, emotional, social, and educational needs, and family background and current status.

§148.911.Treatment Services Provided by Electronic Means.

(a) A licensed treatment program may provide outpatient chemical dependency treatment program services by electronic means provided the criteria outlined in this section are addressed.

(1) Services shall be provided to adult clients only; and

(2) Services shall be provided by a QCC.

(b) All treatment sessions shall have two forms of access control as follows:

(1) all on-line contact between a QCC and clients must begin with a verification of the client through a name, password or pin number; and

(2) security as detailed in HIPAA.

(d) Programs shall maintain compliance with HIPAA and 42 C.F.R. pt. 2.

(e) Programs shall not use email communications containing Client identifying information.

(f) Programs shall use audio and video in real time.

(g) Programs shall ensure timely access to individuals qualified in the technology as backup for systems problems.

(h) Programs shall maintain a toll-free telephone number for technical support.

(i) Programs shall develop a contingency plan for clients when technical problems occur during the provision of services.

(j) Programs shall provide a description of all services offered.

(k) Programs shall provide develop criteria, in addition to DSM, to assess clients for appropriateness of utilizing electronic services.

(l) Programs shall provide appropriate referrals for clients who do not meet the criteria for services.

(m) Programs shall develop a grievance procedure and provide a link to the Commission for filing a complaint when using the Internet or the Commission's toll-free number when counseling by telephone.

(n) Prior to clients engaging in Internet Services, programs shall describe and provide in writing the potential risks to clients. The risks shall address at a minimum these areas:

(1) clinical aspects;

(2) security; and

(3) confidentiality.

(o) Programs shall create safeguards to ensure appropriate age and identification of the client.

(p) Programs shall maintain information on statutes and regulations of the governing area in which the client resides or is receiving services by electronic means.

(q) Programs shall provide emergency contact information to the client.

(r) Programs shall maintain resource information for the local area of the client.

(s) Programs shall provide reasonable ADA accommodations for clients upon request.

(t) Programs must reside and perform cervices in Texas.

(u) The Commission maintains the authority to regulate the program regardless of the location of the client.

(v) The Program shall maintain information on statutes and regulations of the governing area in which the client resides or is receiving the Internet services.

(w) Facility shall provide emergency contact information to the client.

(x) Facility shall maintain resource information for the local area of the Client.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 18, 2003.

TRD-200305297

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Subchapter J. MEDICATION

40 TAC §§148.1001 - 148.1004

The new rules are proposed under the Texas Health and Safety Code, §461.012(a)(15) which provides TCADA with the authority to adopt rules governing its functions, including rules that prescribe the policies and procedures it follows in administering any Commission programs and §461.0141 which provides TCADA with authority to adopt rules regarding purchase of services. The new rules are also proposed under Texas Health & Safety Code §461.0128 which provides that the Commission shall develop model program standards for substance abuse services for use by each state agency that provides or pays for substance abuse services. The new rules are also proposed under Texas Health & Safety Code, §464.009, which provides TCADA with the authority to adopt rules and standards for the licensure of chemical dependency treatment facilities.

The code affected by the proposed new rules is the Texas Health and Safety Code, Chapters 461 and 464.

§148.1001.General Provisions for Medication.

(a) All facilities that provide medication shall implement written procedures for medication storage, administration, documentation, inventory, and disposal.

(b) Prescription medication shall be used only for therapeutic and medical purposes and shall be administered as prescribed by an appropriately Licensed professional.

(d) The facility shall ensure that Staff provide medication are properly credentialed and trained.

(e) The program shall have the phone number of a pharmacy and a comprehensive drug reference manual easily accessible to staff.

§148.1002.Medication Storage.

(a) Prescription and over-the-counter medications, syringes, and needles shall be kept in locked storage and accessible only to staff who are authorized to provide medication.

(b) Clients may keep prescription or over-the-counter medication in their personal possession on site with written authorization from the program director. Staff shall ensure that- authorized clients keep medication on their persons or safely stored and inaccessible to other clients.

(c) The program shall store all medications, syringes, and needles in their original containers under appropriate conditions. Medications requiring refrigeration shall not be stored with food and other items.

(d) The facility shall ensure that stock prescription medications are stored in a licensed pharmacy or physician's office and dispensed by a pharmacist or physician as required by TEX. OCC. CODE ANN. ch. 551 (Vernon 2002).

(e) The facility shall ensure that prescription medication is in a container labeled by the pharmacy.

§148.1003.Medication Inventory and Disposal.

(a) The program shall use an effective system to track and account for all prescription medication.

(b) Staff shall inventory and inspect all stored DEA Schedule II, III, and IV prescription medication at least daily using a centralized medication inventory form.

(c) The staff member conducting the inventory shall sign and date the inventory sheet. When a discrepancy exists between the administration record and the inventory count form, a note explaining the reason for the discrepancy or action taken to reconcile/correct the discrepancy shall be signed by the staff member conducting the inventory and kept with the medication inventory forms.

(d) Staff shall separate unused and outdated medication immediately and dispose of it within 30 days.

(e) Methods used for disposal shall prevent medication from being retrieved, salvaged, or used. Two staff members shall witness and document disposal, including amount of medication disposed and method used.

§148.1004.Administration of Medication.

(a) Staff shall provide and discontinue medication exactly as prescribed.

(b) Prescription medication shall be administered only by nurses and other staff who are legally authorized to administer medication.

(c) Clients may self-administer medication under the supervision of staff who are trained as described in §148.603 of this title (relating to Staff Training).

(d) Each dose of prescription and over-the-counter medication taken by the client shall be documented in the client's medication record.

(e) The medication record shall include:

(1) the client's name;

(2) drug allergies (or the absence of known allergies);

(3) the name and dose of each medication;

(4) the frequency and route of each medication;

(5) the date and time of each dose; and

(6) the signature of the staff person who administered or supervised each dose.

(f) The facility shall document the circumstances and reason for any missed doses.

(g) When a client appears to have an adverse reaction to medication, a staff member shall:

(1) notify the prescribing professional or another physician, dentist, podiatrist, physician assistant or advanced practice nurse (preferably the prescribing professional);

(2) complete an incident report; and

(3) document the facts in the client record, including the date and time of notification and any other action taken.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 18, 2003.

TRD-200305296

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Subchapter K. FOOD AND NUTRITION

40 TAC §§148.1101 - 148.1104

The new rules are proposed under the Texas Health and Safety Code, §461.012(a)(15) which provides TCADA with the authority to adopt rules governing its functions, including rules that prescribe the policies and procedures it follows in administering any Commission programs and §461.0141 which provides TCADA with authority to adopt rules regarding purchase of services. The new rules are also proposed under Texas Health & Safety Code §461.0128 which provides that the Commission shall develop model program standards for substance abuse services for use by each state agency that provides or pays for substance abuse services. The new rules are also proposed under Texas Health & Safety Code, §464.009, which provides TCADA with the authority to adopt rules and standards for the licensure of chemical dependency treatment facilities.

The code affected by the proposed new rules is the Texas Health and Safety Code, Chapters 461 and 464.

§148.1101.Meals in Outpatient Programs.

(a) Programs shall provide a meal break after five consecutive hours of scheduled activities.

(b) If the facility prepares meals in a centralized kitchen on site, it shall pass an annual kitchen health inspection as required by law.

§148.1102.Meals in Residential Programs.

(a) The residential program shall provide wholesome, well-balanced meals, according to posted weekly approved menus.

(b) The program shall provide modified diets to residents who medically require them as determined by a Licensed Health Professional. Special diets shall be prepared in consultation with a licensed dietitian.

(d) The Program shall provide at least three meals daily. The Program shall provide packaged meals or make other arrangements for Clients who are scheduled to be away from the Facility during meal time.

(e) A licensed dietitian shall approve menus and written guidelines for substitutions in advance; or

(1) approve a meal planning manual with sample menus and guidelines for substitutions;

(2) approve menus prepared by new Staff before they plan meals independently;

(3) review a sample of menus served at least annually; and

(4) provide Staff training as needed.

§148.1103.Meals Prepared by Clients.

(a) Staff shall provide training and supervision needed to ensure compliance with the rules in §148.1102 of this title (relating to Meals in Residential Programs).

(b) The program shall define duties in writing and have written instructions posted or easily accessible to clients.

(c) If menu planning and independent meal preparation are part of the clients' treatment program, a licensed dietitian shall:

(1) approve the client training curriculum; and

(2) provide training or approve a training program for staff that instruct and supervise clients in meal preparation.

§148.1104.Meals Provided by a Food Service.

(a) When meals are provided by a food service, a written contract shall require the food service to:

(1) comply with the rules in §148.1102 of this title (relating to Meals in Residential Programs); and

(2) pass an annual kitchen health inspection as required by law.

(b) The facility shall ensure the meals are transported to the facility in temperature controlled containers to ensure the food remains at the temperature at which it was prepared.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 18, 2003.

TRD-200305295

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Subchapter L. RESIDENTIAL PHYSICAL PLANT REQUIREMENTS

40 TAC §§148.1201 - 148.1207

The new rules are proposed under the Texas Health and Safety Code, §461.012(a)(15) which provides TCADA with the authority to adopt rules governing its functions, including rules that prescribe the policies and procedures it follows in administering any Commission programs and §461.0141 which provides TCADA with authority to adopt rules regarding purchase of services. The new rules are also proposed under Texas Health & Safety Code §461.0128 which provides that the Commission shall develop model program standards for substance abuse services for use by each state agency that provides or pays for substance abuse services. The new rules are also proposed under Texas Health & Safety Code, §464.009, which provides TCADA with the authority to adopt rules and standards for the licensure of chemical dependency treatment facilities.

The code affected by the proposed new rules is the Texas Health and Safety Code, Chapters 461 and 464.

§148.1201.General Physical Plant Provisions.

(a) Physical plant requirements apply only to residential programs.

(b) The water supply shall be of safe, sanitary quality, suitable for use, and adequate in quantity and pressure. The water shall be obtained from a water supply system approved by the Texas Natural Resource Conservation Commission (TNRCC).

(c) Sewage shall be discharged into a State-approved sewage system or septic system; otherwise, the sewage must be collected, treated, and disposed of in a manner which is approved by TNRCC.

(d) Mobile homes, recreational vehicles, and campers shall not be used for client sleeping areas.

§148.1202.Required Inspections.

The residential site shall pass all required inspections and keep a current file of reports and other documentation needed to demonstrate compliance with applicable laws and regulations. The inspections must be signed, dated, and free of any outstanding corrective actions. The following inspections are required:

(1) annual inspection by the local certified fire inspector or the State fire marshal;

(2) annual inspection of the alarm system by the fire marshal or an inspector authorized to install and inspect such systems;

(3) annual kitchen inspection by the local health authority or the Texas Department of Health;

(4) gas pipe pressure test once every three years by the local gas company or a licensed plumber;

(5) annual inspection and maintenance of fire extinguishers by personnel licensed or certified to perform those duties; and

(6) annual inspection of liquefied petroleum gas systems by an inspector certified by the Texas Railroad Commission.

§148.1203.Emergency Evacuation.

Every residential Program shall:

(1) have emergency evacuation procedures that include provisions for individuals with disabilities;

(2) hold fire drills on each shift at least quarterly and correct identified problems promptly;

(3) post exit diagrams conspicuously throughout the program site (except in small one-story buildings where all exits are obvious); and

(4) be able to clear the building safely and in a timely manner at all times.

§148.1204.Exits.

(a) Every building shall have at least two well-separated exits on each story.

(b) Every route of exit shall be free of hazards and obstructions, well lit, and marked clearly with illuminated exit signs at all times.

(d) No door may require a key for emergency exit. Locked facilities shall have emergency exit door releases as described in the Life Safety Code and approved by the fire marshal.

§148.1205.Space, Furniture and Supplies.

(a) The facility shall have areas for leisure and dining with adequate space for the number of residents.

(b) Sleeping areas shall have at least:

(1) 80 usable square feet per individual in single-occupancy rooms; and

(2) 60 usable square feet per individual in multiple-occupancy rooms (or 50 square feet per individual if bunk beds are used).

(d) The program shall make at least one phone available to clients.

(e) Each client shall have a separate bed of solid construction with a mattress. Clean bed linen, towels, and soap shall be available at all times and in quantity sufficient to meet the needs of the residents.

(f) All clients shall have access to laundry services or properly maintained laundry facilities equivalent to one washer and dryer per 25 clients.

§148.1206.Fire Systems.

(a) A fire detection, alarm, and communication system required for life safety shall be installed, tested, and maintained in accordance with the facility's occupancy and capacity classifications.

(b) Electrical fire alarm systems shall be installed by agents registered with the State fire marshal's office. The facility shall maintain a copy of the fire alarm installation certificate.

(d) Alarms shall be loud enough to be heard above normal noise levels throughout the building.

(e) Fire extinguishers shall be mounted throughout the facility as required by code and approved by the fire marshal.

(1) Each laundry and walk-in mechanical room shall have at least one portable A:B:C extinguisher, and each kitchen shall have at least one B:C fire extinguisher.

(2) Each extinguisher shall have the required maintenance service tag attached.

(f) Staff shall conduct quarterly inspections of fire extinguishers for proper location, obvious physical damage, and a full charge on the gauge.

§148.1207.Other Physical Plant Requirements.

(a) Occupied parts of the building shall be kept between 65 degrees and 85 degrees Fahrenheit, including kitchens and laundry areas. Cooling and heating shall be provided, as necessary, for resident comfort.

(b) Portable electric heaters and open-flame heating devices are prohibited. All fuel-burning devices shall be vented.

(c) The facility shall be well ventilated through the use of windows, mechanical ventilation, or a combination. Windows used regularly for ventilation shall be screened.

(d) Bedrooms and bathrooms with windows shall have appropriate window coverings for privacy.

(e) The facility shall have adequate internal and external lighting to provide a safe environment and meet user needs.

(f) There shall be at least one sink, one tub or shower, and one toilet for every eight residents. All of the fixtures must be in good working order and have the appropriate drain and drain trap to prevent sewage gas escape back into the facility.

(g) The facility shall provide an adequate supply of hot water for the number of residents and the program schedule.

(h) Showers and tubs shall have no-slip surfaces and curtains or other safe enclosures for privacy.

(i) Clean drinking water shall be readily available to all residents.

(j) Food and waste shall be stored, handled, and removed in a way that will not spread disease, cause odors, or provide a breeding place for pests.

(k) The facility shall be kept free of insects, rodents, and vermin.

(l) Poisonous, toxic, and flammable materials shall be labeled, stored, and used safely

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 18, 2003.

TRD-200305294

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Subchapter M. COURT COMMITMENT SERVICES

40 TAC §148.1301

The new rules are proposed under the Texas Health and Safety Code, §461.012(a)(15) which provides TCADA with the authority to adopt rules governing its functions, including rules that prescribe the policies and procedures it follows in administering any Commission programs and §461.0141 which provides TCADA with authority to adopt rules regarding purchase of services. The new rules are also proposed under Texas Health & Safety Code §461.0128 which provides that the Commission shall develop model program standards for substance abuse services for use by each state agency that provides or pays for substance abuse services. The new rules are also proposed under Texas Health & Safety Code, §464.009, which provides TCADA with the authority to adopt rules and standards for the licensure of chemical dependency treatment facilities.

The code affected by the proposed new rule is the Texas Health and Safety Code, Chapters 461 and 464.

§148.1301.Court Commitment Services.

(a) Facilities accepting court commitments shall be licensed to provide the appropriate level of service:

(1) emergency detention: residential detoxification or intensive residential Services;

(2) adult inpatient involuntary commitments: intensive residential or residential services for adults;

(3) adult outpatient involuntary commitments: day treatment or outpatient services;

(4) juvenile inpatient commitments: intensive residential services for adolescents;

(5) juvenile outpatient commitments: day treatment or outpatient services for adolescents.

(b) The facility's court commitment program shall comply with the TEX. HEALTH & SAFETY CODE ANN. ch. 462 (Vernon 2001).

(c) The facility shall report unauthorized departures to the referring courts. Verbal report shall be made immediately, with written confirmation within 24 hours.

(d) The program shall provide the judiciary with sufficient written information about its program design, treatment methods, admission processes, lengths of stay and continuum of care to assist the judiciary in committing appropriate clients to the facility.

(e) The program shall accept all chemical dependency clients brought to the facility under an emergency detention warrant, order of protective custody, or civil court order for treatment. A formal screening and assessment is not required before admission.

(f) A program that accepts emergency detentions shall adopt a written policy authorizing use of restraint and/or seclusion and implement procedures that conform with §148.706 of this title (relating to Restraint and Seclusion).

(g) The client record shall contain documentation of the conditions and/or behaviors that caused the client's entry into the civil court commitment process.

(h) The client record shall also contain copies of the legal Documents required for civil court commitment as specified by TEX. HEALTH & SAFETY CODE ANN. ch. 462 (Vernon 2001).

(i) The facility shall provide training for at least two designated Staff to ensure they understand and comply with court commitment statutes, regulations, and procedures.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 18, 2003.

TRD-200305316

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Subchapter N. CORRECTIONAL FACILITIES

40 TAC §148.1401

The new rules are proposed under the Texas Health and Safety Code, §461.012(a)(15) which provides TCADA with the authority to adopt rules governing its functions, including rules that prescribe the policies and procedures it follows in administering any Commission programs and §461.0141 which provides TCADA with authority to adopt rules regarding purchase of services. The new rules are also proposed under Texas Health & Safety Code §461.0128 which provides that the Commission shall develop model program standards for substance abuse services for use by each state agency that provides or pays for substance abuse services. The new rules are also proposed under Texas Health & Safety Code, §464.009, which provides TCADA with the authority to adopt rules and standards for the licensure of chemical dependency treatment facilities.

The code affected by the proposed new rules is the Texas Health and Safety Code, Chapters 461 and 464.

§148.1401.Correctional Facilities.

(a) Programs located in correctional facilities are required to meet Commission rules in areas under the control of the correctional facility unless the facility has requirements, standards or mandates which have been adopted by the board of the Texas Department of Criminal Justice. Correctional mandates shall take precedence when correctional requirements conflict with Commission requirements.

(b) A correctional facility is an institution operated under the jurisdiction of Federal, State or local government used to confine individuals who have been convicted of a crime and sentenced to a period of incarceration. Correctional facilities include prisons, jails, and youth detention centers but exclude community-based organizations serving individuals mandated to treatment by the judicial or correctional system.

(c) The Commission may grant variances to community-based treatment facilities that contract with correctional authorities when correctional requirements conflict with Commission requirements.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 18, 2003.

TRD-200305315

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Subchapter O. FAITH BASED CHEMICAL DEPENDENCY PROGRAMS

40 TAC §§148.1501 - 148.1506

The new rules are proposed under the Texas Health and Safety Code, §461.012(a)(15) which provides TCADA with the authority to adopt rules governing its functions, including rules that prescribe the policies and procedures it follows in administering any Commission programs and §461.0141 which provides TCADA with authority to adopt rules regarding purchase of services. The new rules are also proposed under Texas Health & Safety Code §461.0128 which provides that the Commission shall develop model program standards for substance abuse services for use by each state agency that provides or pays for substance abuse services. The new rules are also proposed under Texas Health & Safety Code, §464.009, which provides TCADA with the authority to adopt rules and standards for the licensure of chemical dependency treatment facilities.

The code affected by the proposed new rules is the Texas Health and Safety Code, Chapters 461 and 464.

§148.1501.Definitions.

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

(1) Medical Care - Diagnosis or treatment of a physical or mental disorder.

(2) Medical Detoxification Services - Chemical dependency treatment designed to systematically reduce the amount of alcohol and other toxic chemicals in a client's body, manage withdrawal symptoms, and encourage the client to seek ongoing treatment for chemical dependency.

(3) Medical Withdrawal Service - See Medical Detoxification Services.

(4) Program - For the purposes of this subchapter, Program means a system of care delivered to chemically dependent individuals.

(5) Religious Organization--A church, synagogue, mosque, or other religious institution:

(A) the purpose of which is the propagation of religious beliefs; and

(B) that is exempt from Federal income tax under Section 501(a) of the Internal Revenue Code of 1986, 26 U.S.C. §501(a), by being listed as an exempt organization under Section 501(c) of that code, 26 U.S.C. §501(c).

§148.1502.Exemption for Faith-Based Programs.

(a) A Chemical dependency treatment program is exempt from licensure under Chapter 148 of this title (relating to Standard of Care) if it:

(1) is conducted by a religious Organization;

(2) is exclusively religious, spiritual, or ecclesiastical in nature;

(3) does not treat minors; and

(4) is registered under this chapter.

(b) An exempt program registered under this section may not provide medical care, medical detoxification, or medical withdrawal services.

§148.1503.Registration for Exempt Faith-Based Programs.

(a) To register its exemption, the religious organization shall complete and submit these documents to the Commission:

(1) a registration application;

(2) a copy of the determination letter from the Internal Revenue Service documenting the organization's tax exempt status under the Internal Revenue Code (26 U.S.C. §501(c)(3); and

(3) a copy of the organization's articles of incorporation documenting that the primary purpose of the organization is the propagation of religious beliefs or a letter from the State of Texas Comptroller's Office documenting the organization's religious tax exemption status.

(b) The Commission shall issue a letter documenting the organization's registered exemption if the application packet satisfies the requirements in this section.

(c) An exempt organization registered under this section shall notify the Commission in writing within ten working days of any change affecting the program's exemption.

(d) Incomplete applications shall be returned to the applicant.

§148.1504.Admission to Faith-Based Programs.

(a) An exempt program registered under this section may not admit a individual unless the individual signs the admission statement at the time of admission.

(b) The program shall keep the original signed admission statement and give a copy of it to the individual admitted.

§148.1505.Advertisement.

(a) An exempt program registered under this section must include a notice in any advertisements or literature that promotes or describes the program or its chemical dependency treatment services.

(b) This statement shall reflect the following: The treatment and recovery services at (name of program) are exclusively religious in nature and are not subject to licensure or regulation by the Texas Commission on Alcohol and Drug Abuse. This program offers only nonmedical treatment and recovery methods, such as prayer, moral guidance, spiritual counseling, and scriptural study.

§148.1506.Revocation of Exemption.

(a) The Commission may revoke the exemption after notice and hearing if:

(1) the organization conducting the program fails to inform the Commission of any material changes in the program's registration information in a timely manner;

(2) any program advertisement or literature fails to include the statements required under this section; or

(3) the organization violates TEX. HEALTH & SAFETY CODE ANN. ch. 464 (Vernon 2001), Subchapter C or any Commission rule adopted under the subchapter.

(b) The Commission shall notify the organization in writing of its intent to revoke the exemption and offer the organization the opportunity for an informal hearing.

(c) The organization shall have 15 calendar days from the postmark date of the notice to submit a written request for an informal hearing.

(d) If the organization does not request an informal hearing, the revocation shall go into effect 30 calendar days from the postmark date of the notice of intent.

(e) If the organization requests an informal hearing, the Commission shall schedule the informal hearing within 15 calendar days of the postmark date of the request.

(f) At the hearing, the organization shall have opportunity to show compliance.

(g) If the organization does not show compliance, the Commission's governing board shall consider the information received at the hearing and determine whether or not to revoke the organization's exemption.

(h) The Commission shall send the organization written notification of its decision within 30 calendar days of the date of the hearing.

(i) The revocation shall take effect 30 calendar days from the postmark date of the written notice of decision.

(j) An organization whose exemption has been revoked may apply to reinstate the exemption one year after the effective date of the revocation.

Figure: 40 TAC §148.1506(j) (.pdf format)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 18, 2003.

TRD-200305314

Thomas F. Best

General Counsel

Texas Commission on Alcohol and Drug Abuse

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

Chapter 150. COUNSELOR LICENSURE

40 TAC §§150.1, 150.11 - 150.14, 150.21 - 150.28, 150.31 - 150.34, 150.41 - 150.43, 150.51 - 150.56, 150.62

The Texas Commission on Alcohol and Drug Abuse (TCADA) proposes the repeal of Chapter 150, concerning Counselor Licensure.

Section 150.1 contains definitions.

Sections 150.11 - 150.14 pertain to counselor licensure requirements, exemptions, scope of practice, and fees.

Sections 150.21 - 150.28 pertain to requirements for licensure, educational and practicum standards, standards for supervised work experience, licensure application and registration process, examination, and licensure through reciprocity.

Sections 150.31 - 150.34 pertain to criminal history standards, license expiration and renewal, continuing education standards, and inactive status.

Sections 150.41 - 150.43 contain information on documentation requirements, ethical standards, and actions against a license.

Sections 150.51 - 150.56 provide information on Pre-Service Education Institutions, Clinical Training Institutions, and supervision of interns.

Section 150.62 provides information on Continuing Education Provider Standards.

The repeal of Chapter 150 is proposed because TCADA is adopting new rules. The new rules will be reorganized to provide a more functional and logical framework that is more closely aligned with the other agencies operating under the Health and Human Services Commission.

Thomas F. Best, General Counsel, has determined that there will be no fiscal implications for state or local government for the first five-year period the repeal is in effect.

The repeal is proposed under the Texas Health and Safety Code, Chapter 461, which provides TCADA with the authority to adopt rules governing its functions and Chapter 464, which provides TCADA with the authority to adopt rules and standards for the licensure of chemical dependency treatment facilities. The repeal is also proposed under the Texas Occupations Code, Chapter 504, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to adopt rules for the licensure of chemical dependency counselors.

The codes affected by the proposed repeals are Chapters 461 and 464 of the Texas Health and Safety Codes and Chapter 504 of the Texas Occupations Code.

§150.1.Definitions.

§150.11.License Required.

§150.12.Scope of Practice.

§150.13.Commission Review.

§150.14.Fees.

§150.21.Requirements for Licensure by Examination.

§150.22.Educational Standards.

§150.23.Practicum Standards.

§150.24.Standards for Supervised Work Experience.

§150.25.Licensure Application and Registration Process.

§150.26.Examination.

§150.27.Issuing Licenses.

§150.28.Licensure through Reciprocity.

§150.31.Criminal History Standards.

§150.32.License Expiration and Renewal.

§150.33.Continuing Education Standards.

§150.34.Inactive Status.

§150.41.Documentation.

§150.42.Ethical Standards.

§150.43.Actions Against a License.

§150.51.Pre-Service Education Institution (PSEI) Transition.

§150.52.Practicum Provider Transition.

§150.53.Clinical Training Institution (CTI) Registration.

§150.54.Clinical Training Institution (CTI) Standards.

§150.55.Direct Supervision of Interns.

§150.56.Intern Violations.

§150.62.Continuing Education Provider Standards.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 15, 2003.

TRD-200305249

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 349-6607

40 TAC §§150.101 - 150.126

The Texas Commission on Alcohol and Drug Abuse (TCADA) proposes new Chapter 150, §§150.101 - 150.126, pertaining to Counselor Licensure. TCADA has submitted its proposal to repeal the existing Chapter 150 to the Texas Register for publication in this issue.

The new Chapter 150 proposes to adopt by rule the provisions of the scope of practice guidelines defined by the Center for Substance Abuse Treatment in Technical Assistance Publication 21: Addictions Counseling Competencies: The Knowledge, Skills, and Attitudes of Professional Practice. The new rules also incorporate provisions from Senate Bill 333 (78th Texas Legislature) which increase the minimum education level for the licensed chemical dependency counselor (LCDC) to an associate degree. The new rules also address practice standards for LCDCs who conduct private practice services via electronic means including the Internet; a requirement that LCDCs list their credentials when signing a professional document; and a requirement that clinical training institution (CTI) providers employ a full-time qualified credentialed counselor as a CTI coordinator.

Thomas F. Best, General Counsel, has determined that there will be no significant fiscal impact on state or local government for the first five-year period the new rules are in effect.

The new rules reflect the statutory requirement that an applicant obtain an associates degree if they apply for initial licensure after September 1, 2004. The cost to obtain a degree will vary geographically and according to the applicant's educational background. TCADA estimates that the cost to obtain an associates degree will be less than $2000.

Except as describe above, the Commission does not anticipate that the adoption of the new rules will have a significant effect on small businesses or a significant economic cost to current licensees.

Mr. Best has also determined that for each year of the first five years the new rules are in effect the anticipated public benefit will be increased quality of care to service recipients and greater consistency of service quality.

Comments on the proposal may be submitted to Albert Ruiz, Texas Commission on Alcohol and Drug Abuse, P.O. Box 80529, Austin, Texas 78708-0529. Comments may also be submitted electronically to rules.revisions@tcada.state.tx.us or faxed to (512) 831-4418. All comments must be received by October 15, 2003.

The new rules are proposed under the Occupations Code, §504.051, which provides the Commission with the authority to adopt rules governing the licensure of chemical dependency counselors.

The code affected by the proposed new rules is Chapter 504 of the Texas Occupations Code.

§150.101.License Required.

(a) An individual identified to the public as a chemical dependency counselor must be licensed or exempt under this chapter. Except as provided by this section, individuals who are not licensed chemical dependency counselors (LCDCs) shall not:

(1) offer or provide chemical dependency counseling services other than education;

(2) represent themselves as chemical dependency counselors; or

(3) use any name, title, or designation that implies licensure as a chemical dependency counselor.

(b) The following people are exempt from this chapter when they are acting within the scope of their authorized duties:

(1) counselors employed by Federal institutions;

(2) school counselors certified by the Texas Education Agency;

(3) licensed physicians, licensed psychologists, licensed professional counselors (LPC), licensed marriage and family therapists (LMFT), and licensed master social workers (LMSW);

(4) religious leaders of congregations providing pastoral counseling within the scope of their congregational duties and people who are working for or providing counseling with a program exempted under Chapter 148 of this title (relating to Faith-Based Chemical Dependency Treatment Centers);

(5) students who are participating in a practicum as part of a supervised course of clinical training at a regionally accredited institution of higher education or a proprietary school; and

(6) counselor interns who are registered with the Commission and working under the auspices of a registered clinical training institution.

(1) are legally authorized to provide chemical dependency counseling in those states; and

(2) do not offer or provide chemical dependency counseling in Texas for more than 30 days in any 12-month period.

(d) A person who qualifies for an exemption but chooses to get a license from the Commission is subject to the same rules and disciplinary actions as other licensees.

§150.102.Scope of Practice.

(a) A licensed chemical dependency counselor (LCDC) is licensed to provide chemical dependency counseling services involving the application of the principles, methods, and procedures of the chemical dependency profession as defined by the profession's ethical standards and the Knowledge, Skills, and Abilities (KSAs) as defined in Chapter 141 of this title (relating to General Provisions). The license does not qualify an individual to provide services outside this scope of practice.

(b) The scope of practice for a chemical dependency counselor includes services that address substance abuse/dependence and/or its impact on the service recipient subject to the following:

(1) the counselor is prohibited from using techniques that exceed his or her professional competence;

(2) the service recipient may only be the user, family member or any other person involved in a significant relationship with an active user;

(3) LCDCs may diagnose substance disorders, but anything other than a provisional mental health diagnosis must be determined by a qualified professional;

(4) LCDCs are not qualified to treat individuals with a mental health disorder or provide family counseling to individuals whose presenting problems do not include chemical dependency; and

(5) a counselor in the course of treating the substance abuse/dependence issues of a client may independently address family issues, co-occurring mental health issues and physical and sexual abuse issues of a client if the counselor demonstrates:

(A) 45 hours of post licensure educational hours in each area, and

(B) 2,000 hours of clinically supervised post licensure work experience by a qualified professional.

§150.103.Commission Review.

A person licensed, registered, or approved under this chapter shall allow Commission staff to access the facilities and records and to interview or survey clients, members of the governing body, staff, and students. The person shall make all property, records, and documents related to the license, registration, or approval available for examination or reproduction during normal business hours.

§150.104.Fees.

(a) The schedule for fees is:

(1) initial application fee--$25;

(2) initial licensure fee--$75;

(3) renewal fees:

(A) renewal application fee--$25;

(B) license renewal fee--$75;

(D) late renewal penalty fee (between 91 days and one year after the license expiration date)--$75;

(4) background investigation fee--$40;

(5) inactive status fee--$50;

(6) certificate replacement or duplication fee--$25.

(b) The Commission charges a $25 fee for a printed list of licensed counselors or a set of mailing labels.

(c) The Commission may contract with an outside organization to administer the licensure examination, and the fee charged by the contract organization is subject to change. The current fee shall be printed in the registration form. Examination fees shall be paid directly to the contract organization administering the examination.

(d) Licensure fees paid to the Commission are not refundable.

(e) Fees shall be paid in full with a cashier's check, commercial check, or money order. If online application is available, the fee may be paid with a credit card and is subject to a surcharge by the online vendor.

§150.105.Licensure Application Standards and Registration.

(a) Every person seeking licensure shall register with the Commission by submitting the following items in a form acceptable to the Commission:

(1) the application fee and the background investigation fee;

(2) the Commission's current application form which has been completed, signed, dated, and notarized;

(3) a recent full-face wallet-sized photograph of the applicant;

(4) two sets of fingerprints completed according to Commission instructions with cards issued by the Commission;

(5) documentation that the applicant has successfully completed intern registration requirements in §150.106 of this title (relating to Requirements for Counselor Intern Registration).

(b) An applicant shall:

(1) read the Commission rules (Chapter 150 (2003) of this title);

(2) follow all laws and rules, including the ethical standards;

(3) allow the Commission to seek any additional information or references necessary; and

(4) notify the Commission in writing within 30 days of a change in address.

(d) An application packet will not be accepted unless it is complete.

(1) Incomplete documents will be returned to the sender. The Commission will hold the remaining documents, but will not accept the application until all outstanding documents have been completed and approved.

(2) The application and background fee is not refundable and will not be returned. When resubmitting documents that were returned to the sender as incomplete, a second application fee is not required.

(e) A document may be considered incomplete if it does not conform to the following standards.

(1) All documents must be complete, signed, and dated. Signatures shall include credentials. If the documentation relates to past activity, the date of the activity shall also be recorded.

(2) Documentation shall be permanent and legible.

(3) When it is necessary to correct a document, the error shall be marked through with a single line, dated, and initialed by the writer. Correction fluid shall not be used.

(f) An applicant must receive written notice of registration from the Commission before accumulating any supervised work experience or taking the examination or providing chemical dependency services.

(g) Within 45 Days of receipt of the application, the Commission shall notify the applicant that the application is complete or specify the additional information required.

(h) By signing the application, the applicant accepts responsibility for remaining knowledgeable of licensure rules, including revisions.

(1) Current rules are published in the Texas Administrative Code and posted on the Secretary of State's web site and the Commission's web site.

(2) Proposed rule changes are published in the Texas Register and posted on the Secretary of State's web site and the Commission's web site.

§150.106.Requirements for Counselor Intern Registration.

To be eligible for a counselor intern registration under this chapter, a person must:

(1) be at least 18 years of age;

(2) have a high school diploma or its equivalent;

(3) successfully complete 270 classroom hours of chemical dependency curricula as described in §150.107 of this title (relating to Standards for 270 Educational Hours) or meet the educational waiver contained in §150.109 of this title (relating to Education and Experience Exemptions/Waivers);

(4) complete 300 hours of approved supervised field work practicum as described in §150.108 of this title (relating to Practicum Standards) or meet the educational waiver contained in §150.109 of this title (relating to Education and Experience Exemptions/Waivers);

(5) pass the criminal history standards described in §150.115 of this title (relating to Criminal History Standards);

(6) sign a written agreement to abide by the ethical standards contained in §150.121 of this title (relating to Ethical Standards); and

(7) be worthy of the public trust and confidence as determined by the Commission.

§150.107.Standards for 270 Educational Hours.

(a) At least 135 (nine semester hours) of the education hours must be specific to substance use disorders and their treatment. The remaining 135 hours may be specific or related to chemical dependency counseling. Related education hours may include courses in psychology, upper division sociology, counseling, mental health, behavioral science, psychiatric nursing, ethics, and rehabilitation counseling.

(b) The education shall be provided by a proprietary school, or an accredited institution of higher education.

(c) Continuing education and extended learning courses offered by institutions of higher education are not acceptable unless the curriculum follows the Workforce Education Curriculum Manual and meets the standards equivalent to a credit course.

(d) Educational hours obtained at a proprietary school must follow the curriculum for Transdisciplinary Foundations for Addictions Professional outlined in the KSAs:

(1) Understanding Addiction;

(2) Treatment Knowledge;

(3) Application to Practice; and

(4) Professional Readiness.

(e) The Commission shall not accept hours unless documented with a passing grade on an official transcript from the school. The applicant shall submit additional information requested by the Commission if needed to verify the content of a course.

§150.108.Practicum Standards.

(a) The practicum shall be completed under the administration of a proprietary school or an accredited institution of higher education.

(b) The applicant must complete the practicum under the administration of a single school.

(c) The Commission shall not accept a practicum without an official transcript from the school and a letter from the school's educational coordinator or chair verifying that the practicum was completed in the field of substance abuse.

(d) Practicum hours may be paid or voluntary.

(e) The practicum shall be delivered according to a written training curriculum that provides the student with an orientation to treatment services and exposure to treatment activities in each of the KSA dimensions. The practicum must include the intern observing treatment delivery and the intern providing services under direct observation. The practicum shall include at least 20 hours of experience in each of the KSA dimensions.

(f) All training shall be provided by qualified credentialed counselors (QCCs).

§150.109.Education and Experience Exemptions/Waivers.

(a) Applicants holding a degree in chemical dependency counseling, sociology, psychology, or any other degree approved by the Commission are exempt from the 270 hours of education and the 300 hour practicum. The applicant must submit an official college transcript with the official seal of the college and the signature of the registrar. Degree programs approved by the Commission include baccalaureate, masters, or doctoral degrees with a course of study in human behavior/development and service delivery.

(b) The Commission may waive the 4,000 hours of supervised work experience for individuals who hold a masters or doctoral degree in social work or a masters or doctoral degree in a counseling-related field with 48 semester hours of graduate-level courses. Counseling related degrees shall be reviewed on a case-by-case basis. The applicant shall submit an official college transcript with the official seal of the college and the signature of the registrar, and any other related documentation requested by the Commission.

§150.110.Requirements for Licensure.

To be eligible for a license under this chapter, a person must:

(1) complete the application related to §150.105 of this title (relating to Licensure Application Standards and Registration);

(2) meet the requirements to be a counselor intern in §150.106 of this title (relating to Requirements for Counselor Intern Requirements);

(3) hold an associate degree or more advanced degree with a course of study in human behavior/development and service delivery, with the exception of:

(A) those applicants who meet the requirements for intern registration and submit an application to the Commission by September 1, 2004, and

(B) those counselors who are renewing a continuous license.

(4) complete 4,000 hours of approved supervised experience working with chemically dependent persons as described in §150.111 of this title (relating to Standards for Supervised Work Experience);

(5) pass the written chemical dependency counselor examination approved by the Commission;

(6) submit an acceptable written case presentation to the test administrator;

(7) pass an oral chemical dependency counselor examination approved by the Commission; and

(8) submit two letters of recommendation from LCDCs.

§150.111.Standards for Supervised Work Experience.

(a) An applicant must be registered with the Commission as described in §150.105 and 150.106 of this title (relating to Licensure Application Standards and Registration and Requirements for Counselor Intern Registration) before accumulating supervised work experience.

(b) All supervised work experience obtained in Texas must be completed at a registered clinical training institution (CTI).

(c) Work experience must be documented on the Commission's supervised work experience documentation form and signed by the agency's CTI coordinator.

(1) All hours included in the documented supervised work experience must be performed within the KSA dimensions.

(2) The supervised work experience form must be accompanied by the intern's job description reflecting duties in the KSA dimensions.

(d) Out-of-state work experience will be accepted only if the following conditions are met.

(1) The Applicant is either certified or licensed or in the process of seeking licensure or certification in the other state.

(2) The standards for clinical supervision of work experience must meet or exceed Texas standards and be outlined in the governing agency's rules or standards. A copy of the governing rules or standards must be submitted with the other required documentation of supervised work experience.

(3) The supervised work experience must be documented on the Commission's supervised work experience form or a comparable form used by the governing agency of the other state.

(e) Supervised work experience may be paid or voluntary.

(f) An intern must complete all supervised work experience, pass the written and oral examination and complete an approved associate degree within five years from the date of registration.

(g) A person who has completed the 4,000 hours of supervised work experience and is currently eligible to take or retake the examination is a graduate intern and may continue to provide chemical dependency services under the auspices of a registered clinical training institution during the five-year registration period.

(h) It is the applicant's responsibility to verify that the training institution is registered with the Commission. The Commission shall not accept hours from an unregistered provider. A list of registered CTIs is available on the Commission's web site.

§150.112.Examination.

(a) To be eligible for examination, an applicant shall:

(1) be registered with the Commission as an intern;

(2) submit an acceptable case study to the test administrator; and

(3) pay the examination fee to the test administrator.

(b) All required documentation and fees must be submitted to the test administrator by the specified deadlines. It is the applicant's responsibility to obtain testing information.

(c) An applicant may only take the examination four times, and all testing must be completed within five years from the date of registration. An applicant must take the written and oral portions of the examination together unless the applicant has already passed one part of the examination.

(d) If an applicant does not pass both parts of the examination within five years of the date of registration, does not complete the approved associate degree and/or does not complete the required 4,000 hours of supervised work experience, the Commission shall deny the application.

(1) A person whose license application has been denied is no longer an intern or a graduate and cannot provide chemical dependency counseling services under the auspices of a clinical training institution.

(2) A person whose application has been denied under this section may reapply for licensure only after completing 24 semester hours of course work pre-approved by the Commission at an institution of higher education. The new application shall not be considered complete without an official college transcript documenting the required coursework.

(3) If the Commission accepts the new application, the person must complete the remaining requirements for licensure and may take only the failed portion(s) of the examination an additional three times. Transition standards will not apply. The additional tests must be completed within three years of the new date of registration. During this period, the applicant may provide chemical dependency counseling services as an intern under the auspices of a registered clinical training institution.

§150.113.Issuing Licenses.

(a) When the applicant has met all requirements for licensure and paid the licensure fee, the Commission will issue a license within 45 days.

(b) LCDCs shall keep current versions of the certificate of licensure and the Commission's public complaint notice prominently displayed in their place of business.

(c) A licensee shall not duplicate the licensure certificate to obtain a second copy of the license. A licensee can obtain an official duplicate certificate from the Commission by submitting a written request and the fee specified in §150.104 of this title (relating to Fees).

(d) The Commission will replace a lost or damaged certificate if the licensee provides:

(1) the remnants of the original license (if damaged);

(2) the original license and copy of legal documents (for a name change);

(3) the original license (for printing error); or

(4) a notarized statement if the license has been lost, stolen, or destroyed.

(e) A license replaced because of a printing error or mail damage will be replaced without cost, but all other license replacements require a fee, as specified in §150.104 of this title (relating to Fees). The fee shall be paid in advance with a money order, commercial check, or cashier's check.

(f) LCDCs shall notify the Commission in writing within 30 days of a change in address.

(g) The licensee shall return the license if it is suspended or revoked.

(h) The licensee shall remain knowledgeable of the current rules in this chapter, including rule changes.

§150.114.Licensure through Reciprocity.

(a) A person seeking application through reciprocity shall submit:

(1) a copy of the reciprocal license or certification;

(2) the Commission's current reciprocity application which has been completed, signed, dated, and notarized;

(3) two sets of fingerprints on cards issued by the Commission;

(4) a recent full-face wallet-sized photograph of the applicant;

(5) two letters of recommendation; and

(6) the application fee and the background investigation fee.

(b) The applicant shall meet the criminal history standards described in §150.115 of this title (relating to Criminal History Standards).

(c) The Commission may issue a license based on reciprocity if the individual is currently licensed or certified by another state as a chemical dependency counselor.

(d) The Commission shall not issue a license based on reciprocity unless it finds that the licensing or certification standards of the state of origin are at least substantially equivalent to the requirements for licensure of this chapter.

(e) An applicant who does not qualify for reciprocity may apply for licensure through examination and is subject to the same standards as other applicants.

§150.115.Criminal History Standards.

(a) The Commission reviews the criminal history of every applicant for licensure. Reviews are conducted when:

(1) an applicant registers with the Commission as an intern;

(2) a LCDC applies for license renewal; and

(3) the Commission receives information that a counselor or intern has been charged, indicted, placed on deferred adjudication, community supervision, or probation, or convicted of an offense described in subsection (d) of this section.

(b) An applicant shall disclose and provide complete information about all misdemeanor and felony charges, indictments, deferred adjudications, episodes of community supervision or probation, and convictions. Failure to make full and accurate disclosure will be grounds for immediate application denial, disciplinary action, or license revocation.

(c) The Commission obtains criminal history information from the Texas Department of Public Safety, including information from the Federal Bureau of Investigations (FBI).

(d) The Commission determines whether an offense is directly related to the duties and responsibilities of a LCDC. The Commission has identified the following related offenses and categorized them according to the seriousness of the offense. If an offense is not listed in one of these categories and the Commission determines that it is directly related to chemical dependency counseling, the Commission shall determine the appropriate category.

(1) Category X includes:

(A) capital offenses;

(B) sexual offenses involving a child victim;

(D) multiple counts of felony sexual offenses involving any adult victim; and

(E) homicide 1st degree.

(2) Category I includes:

(A) kidnapping;

(B) arson;

(D) felony sexual offenses involving an adult victim who is not a client (single count); and

(E) attempting to commit crimes in Category I or X.

(3) Category II includes felony offenses that result in actual or potential harm to others and/or animals not listed separately in this section.

(4) Category III includes:

(A) class A misdemeanor alcohol and drug offenses;

(B) class A misdemeanor offenses resulting in actual or potential harm to others or animals;

(D) other felony offenses that do not result in actual or potential harm to others and/or animals.

(5) Category IV includes:

(A) class B misdemeanor alcohol and drug offenses; and

(B) class B misdemeanor offenses resulting in actual or potential harm to others or animals.

(e) The Commission shall deny the initial or renewal license application of a person who has been convicted or placed on community supervision in any jurisdiction for a:

(1) category X offense during the person's lifetime;

(2) category I offense during the 15 years preceding the date of application;

(3) category II offense during the ten years preceding the date of application;

(4) category III offense during the seven years preceding the date of application; or

(5) category IV offense during the five years preceding the date of application.

(f) The Commission shall deny the intern registration application of a person who has been convicted or placed on community supervision in any jurisdiction for a:

(1) category X offense during the person's lifetime;

(2) category I offense during the ten years preceding the date of application;

(3) category II offense during the five years preceding the date of application;

(4) category III offense during the two years preceding the date of application; or

(5) category IV offense during the year preceding the date of application.

(g) The Commission shall defer action on the application of a person who has been charged, indicted, or placed on deferred adjudication, community supervision, or probation for an offense described in subsection (d) of this section. The person may reapply when:

(1) the charges are dropped or the person is found not guilty; or

(2) the timeframes established in subsection (d) of this section have been met.

(h) The Commission shall suspend a counselor's license or an intern's registration if the Commission receives notice from the Texas Department of Public Safety or another law enforcement agency that the individual has been charged, indicted, placed on deferred adjudication, community supervision, or probation, or convicted of an offense described in subsection (d) of this section.

(1) The Commission shall send notice stating the grounds for summary suspension by certified mail to the license holder at the address listed in the Commission's records. The suspension is effective five days after the date of mailing.

(2) The Commission shall restore the person's license upon receipt of official documentation that the charges have been dismissed or the person has been found not guilty.

(i) A person whose license has been denied or suspended under this section may only appeal the action if:

(1) the person was convicted or placed on community supervision; and

(2) the appeal is based on the grounds that the timeframes defined in subsection (d) of this section have been met.

§150.116.License Expiration and Renewal.

(a) A license issued under this chapter is valid for two years, or until the expiration date printed on the license. The licensee is responsible for renewing the license in a timely manner. The Commission shall send the licensee a renewal notice, but failure to receive notice from the Commission does not waive or extend renewal deadlines.

(b) To renew a license, the counselor shall:

(1) send a complete renewal application to the Commission;

(2) pay the renewal application fee, the license fee, and the background investigation fee;

(3) submit two sets of fingerprints completed according to Commission instructions with cards issued by the Commission (if the counselor has not previously submitted fingerprint cards for initial licensure through examination or licensure renewal);

(4) meet the criminal history standards described in §150.115 of this title (relating to Criminal History Standards); and

(5) complete all required continuing education as described in section §150.117 of this title (relating to Continuing Education Standards).

(c) A LCDC who is also licensed as an LMSW, LMFT, LPC, physician, or psychologist in the State of Texas shall complete at least 24 hours of continuing education during each two-year licensure period. The 24 hours of education must include the specific courses required in subsection (f) of this section and, if applicable, in subsection (g) of this section. The individual must submit a copy of the active non-LCDC licensure certificate to be eligible for this provision.

(d) A LCDC who does not meet the criteria in subsection (c) of this section must complete at least 60 hours of continuing education.

(e) All continuing education hours must be specific to substance use disorders and their treatment or related to chemical dependency counseling as defined by the KSA dimensions. Related education hours may include courses in psychology, sociology, counseling, mental health, behavioral science, psychiatric nursing, ethics, and rehabilitation counseling.

(f) Continuing education hours must include at least three hours of ethics training and at least six hours of training (total) in HIV, Hepatitis C, and sexually transmitted diseases.

(g) If an individual's job duties include clinical supervision, required hours of continuing education must include three hours of clinical supervision training.

(h) Renewal fees are due on or before the expiration date. A licensee who submits a late renewal application shall pay a penalty fee in addition to the renewal application and licensure fees, as provided in §150.104 of this title (relating to Fees).

(i) A license cannot be renewed more than one year after the date of expiration. To obtain a new license, the person shall comply with the requirements and procedures for obtaining an initial license. Everyone who applies for a new license under this subsection must pass the written and oral examinations, with one exception. If the person was licensed in Texas, moved to another state, and is currently licensed and has been in practice in the other state for the two years preceding application, the person may renew an expired license without reexamination. The person must pay a fee that is equal to two times the required renewal fee.

(j) A person whose license has expired cannot offer or provide chemical dependency counseling services as defined by the KSAs, represent himself or herself as an LCDC, or act in the capacity of a QCC.

(k) A licensee who teaches a qualifying continuing education course shall receive the same number of hours as students attending the course. Only one set of hours can be accrued for a single curriculum and no more than 30 hours of CE credit will be granted for courses taught by the applicant.

§150.117.Continuing Education Standards.

(a) The Commission will accept continuing education (CE) hours that meet the criteria in this section. Hours that do not meet these criteria may be evaluated on a case-by-case basis.

(b) The Commission will accept continuing education credits from:

(1) recognized State boards, including, but not limited to the Texas State Boards of Social Work and Professional Counselor Examiners;

(2) the National Association of Alcohol and Drug Abuse Counselors; and

(3) the Texas Certification Board for Addiction Professionals.

(c) For counselors who live out of state, the Commission will also accept continuing education hours approved by other state and Federal agencies.

(d) Continuing education certificates must contain:

(1) applicant's name and license number;

(2) date CE hours were completed;

(3) number of CE hours assigned to each course;

(4) CE course title;

(5) educational provider number, if applicable;

(6) sponsoring agency name; and

(7) signature of instructor or coordinator.

(e) The Commission will also accept education hours from an accredited college or university.

(1) College transcripts must contain the official seal of the college and the signature of the registrar.

(2) One hour of college credit is equivalent to 15 CE hours.

(f) Independent study or distance learning courses must be guided and monitored by the instructor and include an evaluation of performance and/or participation verification. In addition, the course must be structured so that students have access to faculty or instructors for questions and assistance in the completion of such course work.

(g) If a counselor earns more than the required number of hours during a two-year licensure period, up to one third of the required hours may be carried forward into the following licensure period.

§150.118.Inactive Status.

(a) A Licensee may request to have his or her license placed on inactive status by submitting a written request and paying the inactive fee before the license expires. Inactive status shall not be granted unless the license is current and in good standing, with no pending investigations or disciplinary actions.

(b) A person on inactive status cannot perform activities outlined in the KSA dimensions, represent himself or herself as an LCDC, or act in the capacity of a QCC. A person is subject to investigation and action during the period of inactive status.

(d) To return to active status, the person shall submit a written request to reactivate the license, a completed renewal application form, the renewal application fee and the license renewal fee, and documentation of 30 hours of continuing education within the inactive status period.

(e) An inactive license will automatically expire at the end of the two-year period.

§150.119.Documentation.

(a) The rules in this section apply only to counseling records of a counselor's private practice.

(b) The counselor shall establish and maintain a record for every client at the time of initial service delivery. The client record shall include:

(1) client identifying information;

(2) assessment results, including a statement of the client's problems and/or diagnosis;

(3) plan of care;

(4) documentation of all services provided, including date, duration, and method of delivery; and

(5) a description of the client's status at the time services are discontinued.

(d) All entries shall be permanent, legible, accurate, and completed in a timely manner.

(e) All documents and entries shall be dated and authenticated. Authentication of electronic records shall be a cryptography-based digital signature.

(f) When it is necessary to correct a record, the error shall be marked through with a single line, dated, and initialed by the counselor.

(g) The counselor shall protect all client records and other client-identifying information from destruction, loss, tampering, and unauthorized access, use or disclosure. Electronic client information shall be protected to the same degree as paper records and shall have a reliable backup system.

(h) The counselor shall not deny clients access to the content of their records except as provided by TEX. HEALTH & SAFETY CODE ANN. §611.0045 (Vernon 2001).

(i) Client records shall be kept for at least five years. Records of adolescent clients shall be kept for at least five years after the client turns 18.

§150.120.Counseling Through Electronic Means.

(a) The rules in this section apply only to a counselor in private practice using the Internet or counseling by telephone.

(b) The counselor must reside in and perform the services from Texas.

(d) The counselor is subject to the statutes of other states and countries where the client may reside or receives services by electronic means. Such statutes may limit the counselor's practice.

(e) The Counselor's provision of services by electronic medium must comply with 42 C.F.R. pt. 2 and the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

(f) The counselor must be able to verify the identification of the client and ensure the client's appropriate age.

(g) If a counselor uses the Internet as the electronic means by which counseling is provided or transfers data through the internet, the counselor must comply with the following:

(1) data may only be transferred using at least a 128-Encryption;

(2) email communication is restricted relating to client information and documentation; and

(3) the counselor must provide technical backup for system problems by providing a phone number to the client to call for technical support and a contingency plan for the client when a technical problem occurs.

(h) The counselor must provide services using audio and video in real time.

(i) The counselor must provide a description of all services offered to the client in writing and describe who is appropriate for the services. The description must include:

(1) a grievance procedure and provide a link to the Commission for filing a complaint when using the Internet and the toll-free number for the Commission when counseling by telephone;

(2) the counselor's credentials, education level, and training;

(3) a link to the licensure verification page when using the Internet and the toll-free number for the Commission when counseling by telephone;

(4) the difference between electronic counseling and traditional counseling; and

(5) the potential risk regarding clinical issues, security and confidentiality.

(j) Services may only be offered by licensed counselors. Counselor interns may not provide counseling by electronic medium.

(k) The counselor must provide an emergency contact person and phone number and emergency procedures to the client in writing.

§150.121.Ethical Standards.

(a) All applicants and LCDCs shall comply with these ethical standards.

(b) The LCDC shall not discriminate against any client or other person on the basis of gender, race, religion, age, national origin, disability, sexual orientation, or economic condition.

(d) The LCDC shall:

(1) promptly report to the Commission any suspected, alleged, or substantiated incidents of abuse, neglect, or exploitation committed by self or other LCDCs or registered counselor interns;

(2) promptly report to the Commission violations of TEX. OCC. CODE ANN. ch. 504 (Vernon 2002), or rules adopted under the statute, including violations of this section by self or others, unless making such a report would violate Federal confidentiality regulations found in 42 C.F.R. pt. 2;

(3) recognize the limitations of his or her ability and shall not offer Services outside the counselor's scope of practice or use techniques that exceed his or her professional competence; and

(4) try to prevent the practice of chemical dependency counseling by unqualified or unauthorized persons.

(e) The LCDC shall not engage in the practice of chemical dependency counseling if impaired by, intoxicated by, or under the influence of chemicals, including alcohol.

(f) The LCDC shall uphold the law and refrain from unprofessional conduct. In so doing, the LCDC shall:

(1) comply with all applicable laws and regulations;

(2) not make any claim, directly or by implication, that the counselor possesses professional qualifications or affiliations that the counselor does not possess;

(3) include their current credentials when signing all professional documents;

(4) not mislead or deceive the public or any person; and

(5) refrain from any act which might tend to discredit the profession.

(g) The LCDC shall:

(1) report information fairly, professionally, and accurately to clients, other professionals, the Commission, and the general public;

(2) maintain appropriate documentation of services provided; and

(3) provide responsible and objective training and supervision to interns and subordinates under the counselor's supervision. This includes properly documenting supervision and work experience and providing supervisory documentation needed for licensure.

(h) In any publication, the LCDC shall give written credit to all persons or works which have contributed to or directly influenced the publication.

(i) The LCDC shall respect a client's dignity, and shall not engage in any action that may injure the welfare of any client or person to whom the counselor is providing services. The LCDC shall:

(1) make every effort to provide access to treatment, including advising clients about resources and Services, taking into account the financial constraints of the client;

(2) remain loyal and professionally responsible to the client at all times, disclose the counselor's ethical code of standards, and inform the client of the counselor's loyalties and responsibilities;

(3) not engage in any activity which could be considered a professional conflict, and shall immediately remove himself or herself from such a conflict if one occurs;

(4) terminate any professional relationship or counseling services which are not beneficial, or is in any way detrimental to the client;

(5) always act in the best interest of the client;

(6) not abuse, neglect, or exploit a client;

(7) not have sexual contact with or enter into a personal or business relationship with a client (including any client receiving services from the counselor's employer) for at least two years after the client's services end;

(8) not request a client to divulge confidential information that is not necessary and appropriate for the services being provided; and

(9) not offer or provide chemical dependency counseling or related services in settings or locations which are inappropriate, harmful to the client or others, or which would tend to discredit the profession of chemical dependency counseling.

(j) The LCDC shall protect the privacy of all clients and shall not disclose confidential information without express written consent, except as permitted by law. The LCDC shall remain knowledgeable of and obey all State and Federal laws and regulations relating to confidentiality of chemical dependency treatment records, and shall:

(1) inform the client, and obtain the client's consent, before tape-recording the client, allowing another person to observe or monitor the client;

(2) ensure the security of client records;

(3) not discuss or divulge information obtained in clinical or consulting relationships except in appropriate settings and for professional purposes which clearly relate to the case;

(4) avoid invasion of the privacy of the client;

(5) provide the client his/her rights regarding confidentiality, in writing, as part of informing the client in any areas likely to affect the client's confidentiality; and

(6) ensure the data requested from other parties is limited to information that is necessary and appropriate to the Services being provided and is accessible only to appropriate parties.

(k) The LCDC shall inform the client about all relevant and important aspects of the professional relationship between the client and the counselor, and shall:

(1) in the case of clients who are not their own consenters, inform the client's parent(s) or legal guardian(s) of circumstances which might influence the professional relationship;

(2) not enter into a professional relationship with members of the counselor's family, close friends or associates, or others whose welfare might be jeopardized in any way by such relationship;

(3) not establish a personal relationship with any client (including any individual receiving services from the counselor's employer) for at least two years after the client's services end;

(4) neither engage in any type or form of sexual behavior with a client (including any individual receiving services from the counselor's employer) for at least two years after the client's services end nor accept as a client anyone with whom they have engaged in sexual behavior; and

(5) not exploit relationships with clients for personal gain.

(l) The LCDC shall treat other professionals with respect, courtesy, and fairness, and shall:

(1) refrain from providing or offering professional services to a client who is receiving chemical dependency treatment from another professional, except with the knowledge of the other professional and the consent of the client, until treatment with the other professional ends;

(2) cooperate with the Commission, professional peer review groups or programs, and professional ethics committees or associations, and promptly supply all requested or relevant information unless prohibited by law; and

(3) ensure that his/her actions in no way exploit relationships with supervisees, employees, students, research participants or volunteers.

(m) Prior to treatment, the LCDC shall inform the client of the counselor's fee schedule and establish financial arrangements with a client. The counselor shall not:

(1) charge exorbitant or unreasonable fees for any treatment service;

(2) pay or receive any Commission, consideration, or benefit of any kind related to the referral of a client for treatment;

(3) use the client relationship for the purpose of personal gain, or profit, except for the normal, usual charge for treatment provided; or

(4) accept a private professional fee or any gift or gratuity from a client if the client's treatment is paid for by another funding source, or if the client is receiving treatment from a facility where the counselor provides services (unless all parties agree to the arrangement in writing).

§150.122.Actions Against a License.

(a) Actions against a license include:

(1) refusal to issue or renew a license;

(2) suspension or revocation of a license;

(3) placing a counselor on probation if the counselor's license has been suspended; and

(4) reprimand of a license holder.

(b) The Commission shall take action against a license for:

(1) violating or assisting another to violate the statute or these rules;

(2) circumventing or attempting to circumvent the statute or these rules;

(3) participating, directly or indirectly, in a plan to evade the statute or these rules;

(4) engaging in false, misleading, or deceptive conduct as defined by TEX. BUS. & COM. CODE ANN. §17.46 (Vernon 2002);

(5) engaging in conduct that discredits or tends to discredit the profession of chemical dependency counseling;

(6) revealing or causing to be revealed, directly or indirectly, a confidential communication made to the LCDC by a client or recipient of services, except as required by law;

(7) having a license to practice chemical dependency counseling in another jurisdiction refused, suspended, or revoked for a reason that the Commission finds would constitute a violation of this chapter;

(8) refusing to perform an act or service for which the person is licensed to perform under this chapter on the basis of the client's or recipient's sex, race, religion, age, national origin, or handicaps; or

(9) committing an act for which liability exists under TEX. CIV. PRAC. & REM. CODE ANN. ch. 81 (Vernon 1997 & Supp. 2003).

(c) The Commission will determine the length of the probation or suspension. The Commission may hold a hearing at any time and revoke the probation or suspension.

(d) The Commission may impose an administrative penalty against a licensee who violates TEX. OCC. CODE ANN. ch. 504 (Vernon 2002) or a rule or order adopted under the statute.

(e) Surrender or expiration of a license does not interrupt an investigation or disciplinary action. The individual is not eligible to regain the license until all outstanding investigations, disciplinary actions, or hearings are resolved.

(f) An individual whose license has been revoked is not eligible to apply for licensure until two years have passed since the date of revocation. During the period of revocation, the individual cannot become a counselor intern. The individual is not eligible to reapply for licensure unless he/she petitions the Commission and demonstrates that sufficient time has elapsed to allow the events leading to revocation to no longer serve as a basis for denial of application. The Commission may require certain conditions be met, before it grants an individual's petition for re-licensure.

(g) The Commission shall deny, suspend, and/or refuse to renew the license of a person based on criminal history as provided in §150.115 of this title (relating to Criminal History Standards).

(h) The Commission shall implement a final order to suspend the license of a counselor for failure to pay child support as provided by the TEX. FAM. CODE ANN. ch. 232 (Vernon 1996 & Supp. 2002).

§150.123.Clinical Training Institution (CTI) Registration.

(a) To become a registered clinical training institution (CTI), an organization shall:

(1) provide activities in an array of the KSA dimensions, including assessment and counseling;

(2) serve a predominantly substance-abusing population;

(3) employ a QCC as the CTI coordinator;

(4) be in good standing with applicable licensing and regulatory agencies;

(5) agree to comply with applicable rules in this chapter; and

(6) submit a complete application.

(b) The program shall receive the registration letter and training program number before training begins. Approval allows the organization to provide clinical training at any of its programs or sites with relevant services.

(c) The approval is valid for two years. The CTI shall reapply every two years by submitting a completed application form. The Commission may mail a courtesy notice, but it is the program's responsibility to reapply at least 45 Days before the expiration date.

(d) The CTI shall notify the Commission in writing within 30 Days of the following changes:

(1) a change in the CTI coordinator;

(2) a change in the organization's name or mailing address; and

(3) closure of the training program.

(e) The Commission may withdraw approval if the CTI fails to comply with all applicable Commission rules.

§150.124.Clinical Training Institution (CTI) Standards.

(a) The training program shall appoint a single training coordinator who is a qualified credentialed counselor (QCC). The training coordinator shall oversee all training activities and ensure compliance with Commission requirements and rules.

(b) The Clinical Training Institution (CTI) shall establish admission criteria. No Applicant shall be admitted without:

(1) documentation that the applicant is registered with the Commission; and

(2) a signed ethics agreement which is consistent with the LCDC ethical standards in §150.121 of this title (relating to Ethical Standards).

(c) The CTI shall establish the following level system to classify interns according to hours of supervised work experience:

(1) Level I: 0 - 1,000 hours of work experience;

(2) Level II: 1,001 - 2000 hours of work experience;

(3) Level III: 2,001 - 4,000 hours of work experience; and

(4) Graduate Status: over 4,000 hours of work experience.

(d) The CTI shall have an organizational structure that includes all intern levels. The CTI shall designate each intern's level in writing and provide the intern with a copy of the documentation.

(e) All interns must be under the direct supervision of a QCC as described in §150.125 of this title (related to Direct Supervision of Interns).

(f) The CTI shall provide each Level I, II, and III intern with reading assignments and training activities for the supervised work experience that includes material in each KSA dimension.

(g) The CTI shall use the Commission's KSA evaluation tool to structure the intern's 4,000 hours of supervised work experience.

(1) The clinical supervisor and the intern shall set weekly objectives based on areas targeted for improvement.

(2) The supervisor shall provide reading, computer, and/or video assignments that address areas needing improvement. The CTI shall allow the intern two hours per month to complete these assignments.

(3) The clinical supervisor shall monitor the intern's progress and provide verbal and written feedback during weekly supervision meetings.

(4) The intern shall complete a written KSA self-evaluation during the first 50 hours of work experience.

(5) The clinical supervisor and the intern shall complete and discuss a written KSA evaluation at the completion of each level of experience (after 1,000 hours, 2,000 hours, and 4,000 hours).

(h) The CTI shall not allow a Level I, II, or III intern to accrue more than 40 hours of work experience per week.

(i) A person who has completed the 4,000 hours of supervised work experience and is currently eligible to take or retake the examination is a graduate intern and may continue to provide chemical dependency counseling services at a registered clinical training institution during the five-year registration period.

(j) The CTI coordinator shall send the following documents directly to the Commission and provide the intern with copies within ten working days from the date the intern completes the required 4,000 hours or leaves the agency:

(1) the supervised work experience form signed by the CTI Coordinator; and

(2) a copy of the intern's job description showing job responsibilities within the KSAs.

(k) All activities counted towards the intern's supervised work experience shall be within the scope of chemical dependency counseling services as defined by the KSAs.

(l) The CTI shall not approve hours for which the intern fails to substantially complete related activities and supervision assignments. Any failure to complete assignments shall be documented on the weekly supervision form.

(m) The CTI shall give each student the Commission's student CTI assessment form with instructions to complete the assessment and mail it directly to the Commission's counselor licensure department.

(n) The CTI shall use all current forms mandated by the Commission.

(o) The CTI shall ensure that each clinical supervisor obtains three hours of continuing education in clinical supervision every two years.

(p) The CTI shall inform students of testing requirements and procedures, as well as testing schedules and information provided by the Commission.

(q) The CTI shall ensure that interns designate their status by using "intern" or "CI" when signing client record entries.

(r) The CTI shall maintain the following documentation for four years in the student files, to include:

(1) letter of registration;

(2) ethics agreement signed by the student;

(3) copies of KSA evaluations;

(4) documentation of all supervision activities;

(5) documentation of intern levels and accumulated hours; and

(6) copy of the supervised work experience form.

(s) The CTI shall give the student a copy of all information contained in the intern file when the intern completes the required supervised work experience and/or leaves the agency.

§150.125.Direct Supervision of Interns.

(a) Direct supervision is oversight and direction of a counselor intern provided by a QCC that complies with the provisions in this section.

(b) The QCC shall assume responsibility for the actions of the intern within the scope of the intern's clinical training.

(c) If the intern has less than 2,000 hours of supervised work experience, the supervisor must be on site when the intern is providing services. If the intern has at least 2,000 hours of documented supervised work experience, the supervisor may be on site or immediately accessible by telephone.

(d) During an intern's first 1,000 hours of supervised work experience (Level I), the CTI coordinator or QCC designee shall:

(1) be on duty at the program site where the intern is working;

(2) observe and document the intern performing assigned activities at least once every two weeks (or 80 hours);

(3) provide and document one hour of face-to-face individual or group supervision each week; and

(4) sign off on all clinical assessments, treatment plans, and discharge summaries completed by the intern.

(e) During an intern's second 1,000 hours of supervised work experience (Level II), the CTI coordinator or QCC designee shall:

(1) be on duty at the program site where the intern is working;

(2) observe and document the intern performing assigned activities at least once every month (160 hours);

(3) provide and document one hour of face-to-face individual or group supervision each week; and

(4) sign off on all clinical assessments, treatment plans, and discharge summaries completed by the intern.

(f) During an intern's last 2,000 hours of required supervised work experience (Level III), the CTI coordinator or QCC designee shall:

(1) be available by phone while the intern is working;

(2) observe and document the intern performing assigned activities as determined necessary by the CTI coordinator;

(3) provide and document one hour of face-to-face individual or group supervision each week; and

(4) sign off on all clinical assessments, treatment plans, and discharge summaries completed by the intern.

(g) After an intern achieves graduate status, the CTI coordinator or QCC designee shall:

(1) be available by phone while the graduate intern is working;

(2) provide and document one hour of face-to-face individual or group supervision each week; and

(3) sign off on all clinical assessments, treatment plans, and discharge summaries completed by the graduate intern.

(h) A supervisor's schedule must allow an average of two hours of supervision-related activity per week per intern.

§150.126.Intern Violations.

(a) The CTI shall investigate all allegations that an intern has violated the ethical standards described in §150.121 of this title (relating to Ethical Standards).

(b) If the allegation is substantiated, the CTI shall take appropriate action. Action may include denying some or all of the intern's supervised work experience hours.

(1) abused, neglected, or exploited a service recipient;

(2) committed an ethical violation that results in actual or potential harm to a service recipient;

(3) engaged in illegal activity;

(4) falsified or destroyed documentation; or

(5) established a close personal or business relationship with a client outside the counseling relationship.

(d) The CTI shall deny all supervised work experience hours for an intern with a substantiated ethical violation described in subsection (c) of this section.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 18, 2003.

TRD-200305313