Part 1.
TEXAS DEPARTMENT OF HEALTH
Chapter 1.
TEXAS BOARD OF HEALTH
Subchapter G. CLINICAL HEALTH SERVICES
25 TAC §1.91
The Texas Department of Health (department) adopts the amendment
to §1.91 concerning fees for clinical health services with changes to
the proposed text as published in the September 20, 2002, issue of the
The amendment to §1.91 affects clinics operated by the department's
public health regions and department contractors that provide direct health
care services to eligible clients. The amendment deletes the current requirement
that the department publish in the
Texas Register
poverty income guidelines distributed annually by the United States
Department of Health and Human Services for services provided to clients whose
eligibility is based on the poverty guidelines. The amendment also deletes
internal operating procedures as well as several provisions of Health and
Safety Code, §12.032 that are restated in the section. An operating procedure
will be developed to describe the procedures for distribution of the revised
poverty guidelines.
The department is making the following clarifying change as a result of
a staff comment.
Change: Concerning §1.91(b)(3), the paragraph is effective as an internal
operating procedure and is being deleted as unnecessary. Health and Safety
Code, §12.035(a) already requires that fees from persons who receive
public health services from the department shall be deposited in the public
health services fee fund in the state treasury.
No other comments were received concerning the proposal during the comment
period.
The amendment is adopted under Health and Safety Code, §12.032,
which authorizes the Texas Board of Health (board) by rule to charge fees
for public health services provided by the department; and Health and Safety
Code, §12.001, which authorizes the board to adopt rules for its procedure
and for the performance of each duty imposed by law on the board, the department,
and the commissioner of health.
§1.91.Fees for Personal Health Services.
(a)
Poverty Guidelines. The department provides personal health
services directly or through contractors throughout Texas. The commissioner
or his designee shall distribute poverty guidelines published annually by
the United States Department of Health and Human Services, in coordination
with the Texas Medicaid program. Public health regions and the department's
contractors shall use these poverty guidelines for determining clients' eligibility
for services, unless prohibited from doing so by federal funding requirements.
The department's operating procedures contain procedures for implementing
the poverty guidelines.
(b)
Schedule of fees.
(1)
Public health regional clinics shall charge fees for personal
health services according to the following schedule.
(2)
No recipient or client eligible for Medicaid shall be charged
a fee in addition to the amount reimbursable by Medicaid.
(c)
Modification, suspension, or termination of services.
(1)
The department may modify, suspend, or terminate services
to a person determined able to pay for nonpayment of fees after notice to
the person and opportunity for hearing. The criteria upon which the department
will take such action is when the person fraudulently or deliberately misrepresents
a material fact about his or her eligibility, ability to pay, or the application
of the schedule of fees to him/her.
(2)
The department shall conduct the hearing in accordance
with §§1.51-1.55 of this title (relating to Fair Hearing Procedures).
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on January 17, 2003.
TRD-200300301
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: February 6, 2003
Proposal publication date: September 20, 2002
For further information, please call: (512) 458-7236
25 TAC §§1.221 - 1.228
The Texas Department of Health (department) adopts amendments
to §§1.221-1.228 concerning standards for conduct governing the
relationship between the department and private donors and private organizations
without changes to the proposed text as published in the September 20, 2002
issue of the
Texas Register
(27 TexReg 8870),
and therefore the sections will not be republished.
Government Code, §2001.039 requires that each state agency review
and consider for readoption each rule adopted by that agency pursuant to the
Government Code, Chapter 2001 (Administrative Procedure Act). The department
has reviewed §§1.221-1.228 and has determined that reasons for adopting
the sections continue to exist and published amendments to these sections.
The department published a Notice of Intention to Review §§1.221-1.228
in the
Texas Register
on May 24, 2002 (27
TexReg 4594). No comments were received due to publication of this notice.
Government Code, §2255.001, which addresses the relationship between
state agencies and private organizations that are set up to support them,
requires these rules. The rules address the issues of donations by private
donors, the creation of a private organization that supports the department,
the relationship between the department and the private organization, standards
of conduct for department employees and private organizations, and miscellaneous
topics.
No comments were received during the 30 day comment period on the proposal.
The amendments are adopted under Government Code, §2255.001
which requires the department to adopt rules governing the relationship with
private donors or organizations; and Health and Safety Code, §12.001,
which provides the Texas Board of Health (board) with authority to adopt rules
to implement every duty imposed by law on the board, the department, and the
commissioner of health.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on January 17, 2003.
TRD-200300306
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: February 6, 2003
Proposal publication date: September 20, 2002
For further information, please call: (512) 458-7236
25 TAC §§1.551 - 1.553
The Texas Department of Health (department) adopts new §§1.551
- 1.553, concerning the posting of final enforcement actions without changes
to the proposed text as published in the September 20, 2002, issue of the
The new sections cover definitions; purpose of posting; posting procedures;
website information; effect of other laws; corrections; annual analysis; and
trends. Section 1.551 sets forth the scope of the subchapter, and defines
the terms necessary to comply with the Health and Safety Code, Chapter 12.
Section 1.552 sets forth the purpose of posting final enforcement actions
and the requirements of that posting, information to be made available on
program websites, and the effect of other laws or errors in the posting. Section
1.553 sets forth the requirements of analysis of the enforcement actions,
and the trends of enforcement from year to year.
There were no comments received during the comment period.
The new sections are adopted under the Health and Safety Code, §12.0145
and §12.0146, which requires the department to publish information about
enforcement actions and to analyze trends in enforcement; and §12.001,
which provides the Texas Board of Health (board) with the authority to adopt
rules for the performance of every duty imposed by law on the board, the department,
and the commissioner of health.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on January 17, 2003.
TRD-200300278
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: February 6, 2003
Proposal publication date: September 20, 2002
For further information, please call: (512) 458-7236
25 TAC §2.1
The Texas Department of Health (department) adopts the new §2.1
concerning the establishment of the Preparedness Coordinating Council (council).
This section is adopted with changes to the proposed text as published in
the November 1, 2002 issue of the
Texas Register
(27 TexReg 10296). Specifically, the rule covers the establishment,
structure, and composition of a preparedness coordinating council. The purpose
of the council is to provide advice and assistance to the Board of Health
(board) and the department in coordinating efforts to prepare the State of
Texas for bioterrorism attacks, other infectious disease outbreaks, and additional
public health threats and emergencies. This rule is necessary in order to
comply with the requirements of Title 42 United States Code, §247d-3a(b).
The council is established under the Health and Safety Code, §11.016,
which allows the board to establish advisory committees, and Title 42 United
States Code, §247d-3a(b), which requires an advisory committee to provide
the department with advice on public health preparedness. The council is governed
by the Government Code, Chapter 2110, concerning state agency advisory committees.
The department modified the wording and punctuation of the rule for clarification
purposes. The following comments and responses reflect other department modifications.
Change: Staff suggested that the council might discuss security issues
in their meetings. If these meetings are open to the general public, sensitive
information may be disclosed. The proposed rule allows meetings open to the
public. The department agrees that security may be of concern and has amended §2.1(i)(3)
so that meetings may be called without public notice. The department shall
notify stakeholders of meetings as appropriate.
Change: Staff suggested that since the Hospital Preparedness Planning Committee
and the Bioterrorism Preparedness and Response Committee are required by contract,
the department should have control over the membership of these two subcommittees.
The department agreed with this comment and modified §2.1(m)(1) to reflect
this change.
Change: Staff suggested that §2.1(h)(3) and §2.1(h)(4) be amended
to include the presiding officer. The department agreed and made this change.
Change: Staff suggested that portions of §2.1(j), §2.1(n), and §2.1(p)
be modified to include the members of the subcommittees, as well as council
members. The department agreed and made these modifications.
The following comments were received. Following each comment is the department's
response.
Comment: The commenter suggested that §2.1(f)(2)(B)(iii) be modified
to read, "two representatives from community hospitals and one from other
community health providers" to ensure that hospitals are adequately represented.
Response: The department believes that the members of the council should
represent a broad range of experienced professionals. Because of this, the
department will seek to select council members who are able to "wear two hats,"
in other words, persons who are members of multiple entities or professional
groups. The department will take care to ensure that hospitals have significant
representation on the council. No changes were made as a result of this comment.
Comment: The commenter requested that one or more Infection Control Professionals
be appointed to the council.
Response: The department will consider this request when appointing council
members. No changes were made to the rule as a result of this comment.
The comments on the proposed rule received by the department during the
comment period were submitted by: Texas Hospital Association and Texas Society
of Infection Control Practitioners. The commenters were generally in favor
of the proposed rule.
The new rule is adopted under Health and Safety Code, §11.016,
which authorizes the board to establish advisory committees. The new rule
was proposed under Health and Safety Code, §12.001 which provides the
board with the authority to adopt rules for the performance of every duty
imposed by law on the board, the department, and the commissioner; and Government
Code, §2110.005 which requires the department to adopt rules stating
the purpose and tasks of its advisory committees.
§2.1.Preparedness Coordinating Council.
(a)
The council.
(1)
The Preparedness Coordinating Council (council) shall be
appointed under and governed by this section.
(2)
The council is established under the Health and Safety
Code, §11.016, which authorizes the board to establish advisory councils
and Title 42 United States Code §247d-3a(b) which requires an advisory
committee (or similar mechanism) to obtain input on preparedness planning.
(b)
Applicable law. The council is subject to the Government
Code, Chapter 2110, concerning state agency advisory councils.
(c)
Purpose. The purpose of the council is to provide advice
and assistance to the Board of Health (board) and the Department of Health
(department) in coordinating efforts to prepare the state of Texas for bioterrorism
attacks, other infectious disease outbreaks, and additional public health
threats and emergencies.
(d)
Tasks.
(1)
The council shall advise the board concerning rules relating
to major public health preparedness issues.
(2)
The council will assist the department and the board in
coordinating preparedness and response planning, improving disease surveillance
and detection, developing epidemic response capabilities, and addressing other
public health emergency activities related to the department.
(3)
The council shall carry out any other tasks assigned by
the board.
(e)
Council abolished. By January 1, 2007, the board will initiate
and complete a review of the council to determine whether the council should
be continued, consolidated with another council, or abolished. If the council
is not continued or consolidated, the council shall be abolished on that date.
(f)
Composition. The council shall be composed of 17 members.
(1)
The composition of the council shall include 5 consumer
representatives, and 12 non-consumer representatives.
(2)
The members of the council shall be appointed by the commissioner
of health (commissioner) as follows:
(A)
5 consumers representing the interests of the general public;
(B)
12 non-consumer members, including the following:
(i)
3 representatives of local health departments or local
governments;
(ii)
3 representatives from emergency management entities;
(iii)
3 representatives from community hospitals or other community
health providers; and
(iv)
3 representatives from universities or health science
centers.
(g)
Terms of office. The term of office of each member shall
be 6 years.
(1)
Members shall be appointed for staggered terms so that
the terms of six members will expire on December 31 of each even-numbered
year.
(2)
If a vacancy occurs, a person shall be appointed to serve
the unexpired portion of that term.
(h)
Officers. The council shall select from its members the
presiding officer and an assistant presiding officer.
(1)
The presiding officer shall serve until December 31 of
each even-numbered year. The assistant presiding officer shall serve until
December 31 of each odd-numbered year. Both the presiding officer and the
assistant presiding officer may holdover until his or her replacement is elected
by the council.
(2)
The presiding officer shall preside at all council meetings
which he or she attends, call meetings in accordance with this section, appoint
subcommittees of the council as necessary, and cause proper reports to be
made to the board. The presiding officer may serve as an ex-officio member
of any subcommittee of the council.
(3)
If the office of presiding officer or assistant presiding
officer becomes vacant, it may be filled by vote of the council
(4)
A member shall serve no more than two consecutive terms
as presiding officer or assistant presiding officer.
(5)
The council may reference its officers by other terms,
such as chairperson and vice-chairperson.
(i)
Meetings. The council shall meet only as necessary to conduct
council business.
(1)
A meeting may be called by agreement of department staff
and either the presiding officer or at least three members of the council.
(2)
Meeting arrangements shall be made by department staff.
Department staff shall contact council members to determine availability for
a meeting date and place.
(3)
The council is not a "governmental body" as defined in
the Open Meetings Act.
(4)
Each member of the council shall be informed of a council
meeting at least five working days before the meeting.
(5)
A simple majority of the members of the council shall constitute
a quorum for the purpose of transacting official business.
(6)
The council is authorized to transact official business
only when in a legally constituted meeting with a quorum present.
(7)
The agenda for each council meeting shall include an opportunity
for any person to address the council on matters relating to council business.
The presiding officer may establish procedures for such public comment, including
a time limit on each comment.
(j)
Attendance. Members shall attend council meetings as scheduled.
Members and subcommittee members shall attend meetings of subcommittees to
which the members and subcommittee members are assigned.
(1)
A member shall notify the presiding officer or appropriate
department staff if he or she is unable to attend a scheduled meeting.
(2)
It shall be grounds for removal from the council if a member
or subcommittee member cannot discharge the member's duties for a substantial
part of the term for which the member is appointed because of illness or disability,
absence from more than half of the council and subcommittees meetings during
a calendar year, or absence from at least three consecutive council meetings.
(3)
The validity of an action of the council is not affected
by the fact that it is taken when a ground for removal of a member exists.
(k)
Staff. Staff support for the council shall be provided
by the department.
(l)
Procedures. Roberts Rules of Order, Newly Revised, shall
be the basis of parliamentary decisions except where otherwise provided by
law or rule.
(1)
Any action taken by the council must be approved by a majority
vote of the members present once a quorum is established.
(2)
Each member shall have one vote.
(3)
A member may not authorize another individual to represent
the member by proxy.
(4)
The council shall make decisions in the discharge of its
duties without discrimination based on any person's race, creed, gender, religion,
national origin, age, physical condition, or economic status.
(5)
Minutes of each council meeting shall be taken by department
staff.
(A)
A draft of the minutes approved by the presiding officer
shall be provided to the board and each member of the council within 30 days
of each meeting.
(B)
After approval by the council, the minutes shall be signed
by the presiding officer.
(m)
Subcommittees. The council shall have a Hospital Preparedness
Planning Committee (HPPC) and a Bioterrorism Preparedness and Response Committee
(BRPC). The council may establish other subcommittees as necessary to assist
the council in carrying out its duties.
(1)
With the exception of the HPPC and the BPRC, the presiding
officer shall appoint members of the council to serve on subcommittees and
to act as subcommittee chairpersons. The presiding officer also may appoint
nonmembers of the council to serve on subcommittees, subject to the approval
of the Commissioner. The HPPC and the BRPC members shall be appointed by the
Commissioner.
(2)
Subcommittees shall meet when called by the subcommittee
chairperson or when so directed by the council.
(3)
A subcommittee chairperson shall make regular reports to
the advisory council at each council meeting or in interim written reports
as needed. The reports shall include an executive summary or minutes of each
subcommittee meeting.
(n)
Statement by members.
(1)
The board, the department, and the council shall not be
bound in any way by any statement or action on the part of any council member
or subcommittee member except when a statement or action is in pursuit of
specific instructions from the board, department, or council.
(2)
The council and its members or subcommittee members may
not participate in legislative activity in the name of the board, the department,
or the council except with approval through the department's legislative process.
Council members are not prohibited from representing themselves or other entities
in the legislative process.
(3)
A council member or subcommittee member should not accept
or solicit any benefit that might reasonably tend to influence the member
in the discharge of the member's official duties.
(4)
A council member or subcommittee member should not disclose
confidential information acquired through his or her committee membership.
(5)
A council member or subcommittee member should not knowingly
solicit, accept, or agree to accept any benefit for having exercised the member's
official powers or duties in favor of another person.
(6)
A council member or subcommittee member who has a personal
or private interest in a matter pending before the committee shall publicly
disclose the fact in a committee meeting and may not vote or otherwise participate
in the matter. The phrase "personal or private interest" means the committee
member has a direct pecuniary interest in the matter but does not include
the committee member's engagement in a profession, trade, or occupation when
the member's interest is the same as all others similarly engaged in the profession,
trade, or occupation.
(o)
Reports to board. The council shall file an annual written
report with the board.
(1)
The report shall list the meeting dates of the council
and any subcommittees, the attendance records of its members, a brief description
of actions taken by the council, a description of how the council has accomplished
the tasks given to the council by the board, the status of any rules which
were recommended by the council to the board, and anticipated activities of
the council for the next year.
(2)
The report shall identify the costs related to the council's
existence, including the cost of agency staff time spent in support of the
council's activities and the source of funds used to support the council's
activities.
(3)
The report shall cover the meetings and activities in the
immediately preceding fiscal year and shall be filed with the board each January.
The report shall be signed by the commissioner.
(p)
Reimbursement for expenses. In accordance with the requirements
set forth in the Government Code, Chapter 2110, a council member or subcommittee
member may receive reimbursement for the member's expenses incurred for each
day the member engages in official council business if authorized by the General
Appropriations Act or the budget execution process.
(1)
No compensatory per diem shall be paid to council members
or subcommittee members unless required by law.
(2)
A council member or subcommittee member who is an employee
of a state agency, other than the department, may not receive reimbursement
for expenses from the department.
(3)
Each member who is to be reimbursed for expenses shall
submit to staff the member's receipts for expenses and any required official
forms no later than 14 days after each council meeting.
(4)
Requests for reimbursement of expenses shall be made on
official state travel vouchers prepared by department staff.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on January 17, 2003.
TRD-200300307
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: February 6, 2003
Proposal publication date: November 1, 2002
For further information, please call: (512) 458-7236
Subchapter P. SURVEILLANCE AND CONTROL OF BIRTH DEFECTS
25 TAC §37.307
The Texas Department of Health (department) adopts the repeal
of §37.307 concerning the Scientific Advisory Committee on Birth Defects
in Texas (committee) without changes to the proposed text as published in
the November 1, 2002, issue of the
Texas Register
(27 TexReg 10299). The committee has provided advice to the Texas
Board of Health (board) and the department in the area of implementing an
effective birth defects registry and related research, referral, and educational
activities.
In 1993, the Texas Legislature passed Senate Bill 383 (now codified in
the Government Code, Chapter 2110) which requires that each state agency adopt
rules on advisory committees. The rules must state the purpose of the committee,
describe the tasks of the committee, describe the manner in which the committee
will report to the agency, and establish a date on which the committee will
be automatically abolished unless the governing body of the agency affirmatively
votes to continue the committee's existence.
In 1995, the board established a rule relating to the Scientific Advisory
Committee on Birth Defects in Texas. The rule states that the committee will
automatically be abolished on March 1, 2003, and the board has determined
that the committee should be abolished by that date. Issues relating to the
type of advice previously provided by the committee have been implemented
and future related issues are better addressed through the establishment of
ad hoc workgroups.
Government Code, §2001.039 requires that each state agency review
and consider for readoption each rule adopted by that agency pursuant to the
Government Code, Chapter 2001 (Administrative Procedure Act). The department
has reviewed §37.307 and has determined that reasons for adopting the
rule no longer continue to exist.
The department published a Notice of Intention to Review §37.307 in
the
Texas Register
on April 28, 2000 (25 TexReg
3799). No comments were received due to publication of this notice.
There were no comments received concerning the repeal during the 30-day
comment period.
The repeal is adopted under the Health and Safety Code, §11.016,
which allows the board to establish advisory committees; the Government Code,
Chapter 2110, which sets standards for the evaluation of advisory committees
by the agencies for which they function; and the Health and Safety Code, §12.001,
which provides the board with authority to adopt rules for the performance
of every duty imposed by law upon the board, the department, and the commissioner
of health.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on January 17, 2003.
TRD-200300304
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: February 6, 2003
Proposal publication date: November 1, 2002
For further information, please call: (512) 458-7236
Subchapter A. KIDNEY HEALTH CARE PROGRAM
25 TAC §61.12
The Texas Department of Health (department) adopts an amendment
to §61.12 concerning the Kidney Health Care Advisory Committee (committee).
The section is adopted without changes to the proposed text as published in
the November 1, 2002 issue of the
Texas Register
(27 TexReg 10300), and the section will not be republished.
The committee has provided advice to the Texas Board of Health (board)
and the department in the area of end-stage renal disease (ESRD) and on current
state-of-the-art treatment modalities, medication therapies, and prioritization
of the needs of ESRD patients in Texas. The committee is established under
the Health and Safety Code, §11.016, which allows the board to establish
advisory committees and the Health and Safety Code, §85.066, which allows
the board to appoint an advisory committee to assist in the development of
procedures and guidelines required by the Kidney Health Care Program. The
committee is governed by the Government Code, Chapter 2110, concerning state
agency advisory committees.
Government Code, §2001.039 requires that each state agency review
and consider for readoption each rule adopted by that agency pursuant to the
Government Code, Chapter 2001 (Administrative Procedure Act). The department
has reviewed §61.12 and has determined that reasons for adopting the
section continue to exist; however, changes were necessary as described in
this preamble.
The department published a Notice of Intention to Review §61.12 in
the
Texas Register
on January 7, 2000 (25
TexReg 218). No comments were received due to publication of this notice.
In 1993, the Texas Legislature passed Senate Bill 383 (now codified in
the Government Code, Chapter 2110) which requires that each state agency adopt
rules on advisory committees. The rules must state the purpose of the committee,
describe the tasks of the committee, describe the manner in which the committee
will report to the agency, and establish a date on which the committee will
be automatically abolished unless the governing body of the agency affirmatively
votes to continue the committee's existence.
In 1997, the board established a rule relating to the Kidney Health Care
Advisory Committee. The rule states that the committee will automatically
be abolished on March 1, 2003. The board has now reviewed and evaluated the
committee and has determined that the committee should continue in existence
until March 1, 2008.
This section amends provisions relating to the operation of the committee.
Specifically, language is revised to: continue the committee until March 1,
2008; include additional requirements regarding statements by members; and
clarify the components that the committee must include in an annual report
to the board.
No public comments were received during the comment period for the rule.
The amendment is adopted under the Health and Safety Code, §12.001
which provides the board with the authority to adopt rules for the performance
of every duty imposed by law on the board, the department, and the commissioner; §85.066
which allows the board to appoint the committee; and the Government Code, §2110.005
which requires the department to adopt rules stating the purpose and tasks
of its advisory committees.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on January 17, 2003.
TRD-200300302
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: February 6, 2003
Proposal publication date: November 1, 2002
For further information, please call: (512) 458-7236
Subchapter C. TEXAS HIV MEDICATION PROGRAM
2.
ADVISORY COMMITTEE
25 TAC §98.121
The Texas Department of Health (department) adopts an amendment
to §98.121 concerning the Texas HIV Medication Advisory Committee (committee).
The section is adopted without changes to the proposed text as published in
the November 1, 2002 issue of the
Texas Register
(27 TexReg 10302), and the section will not be republished.
The committee has provided advice to the Texas Board of Health (board)
and the department on strategies in the development of procedures and guidelines
for the HIV Medication Program. The committee was established under the Health
and Safety Code, §11.016, which allows the board to establish advisory
committees and the Health and Safety Code, § 85.066, which allows the
board to appoint an advisory committee to assist in the development of procedures
and guidelines required by the HIV Medication Program. The committee is governed
by the Government Code, Chapter 2110, concerning state agency advisory committees.
Government Code, §2001.039 requires that each state agency review
and consider for readoption each rule adopted by that agency pursuant to the
Government Code, Chapter 2001 (Administrative Procedure Act). The department
has reviewed §98.121 and has determined that reasons for adopting the
section continue to exist; however, changes were necessary as described in
this preamble.
The department published a Notice of Intention to Review §98.121 in
the
Texas Register
on April 28, 2000 (25 TexReg
3801). No comments were received due to publication of this notice.
In 1993, the Texas Legislature passed Senate Bill 383 (now codified in
the Government Code, Chapter 2110) which requires that each state agency adopt
rules on advisory committees. The rules must state the purpose of the committee,
describe the tasks of the committee, describe the manner in which the committee
will report to the agency, and establish a date on which the committee will
be automatically abolished unless the governing body of the agency affirmatively
votes to continue the committee's existence.
In 1994, the board established a rule relating to the Texas HIV Medication
Advisory Committee. The rule states that the committee will automatically
be abolished on March 1, 2003. The board has now reviewed and evaluated the
committee and has determined that the committee should continue in existence
until March 1, 2008.
This section amends provisions relating to the operation of the committee.
Specifically, language is revised to: continue the committee until March 1,
2008; define committee tasks; include additional requirements regarding statements
by members; and clarify the components that the committee must include in
an annual report to the board.
No public comments were received during the comment period for the rule.
The amendment is adopted under the Health and Safety Code, §12.001
which provides the board with the authority to adopt rules for the performance
of every duty imposed by law on the board, the department, and the commissioner; §85.066
which allows the board to appoint the committee; and the Government Code, §2110.005
which requires the department to adopt rules stating the purpose and tasks
of its advisory committees.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on January 17, 2003.
TRD-200300303
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: February 6, 2003
Proposal publication date: November 1, 2002
For further information, please call: (512) 458-7236
25 TAC §102.3
The Texas Department of Health (department) adopts an amendment
to §102.3 concerning the distribution of tobacco settlement proceeds
to political subdivisions. Section 102.3 is adopted without changes to the
proposed text as published in the November 1, 2002, issue of the
Texas Register
(27 TexReg 10304), and therefore the section will not
be republished.
This rule implements a portion of the Government Code, Chapter 12, Subchapter
J, which designates the department's responsibilities under the Agreement
Regarding Disposition of Tobacco Settlement Proceeds (agreement) filed on
July 24, 1998, in United States District Court, Eastern District of Texas,
in the case styled The State of Texas v. The American Tobacco Co., et al.,
No. 5-96CV-91. The department collects information and certifies amounts of
the tobacco settlement proceeds for annual distribution to political subdivisions.
The term "political subdivision" means a hospital district, another local
political subdivision owning or maintaining a public hospital, or a county
of the State of Texas responsible for providing indigent health care to the
general public. The Health and Safety Code, Chapter 61, defines which entities
are responsible for providing indigent health care to the general public.
Specifically, the amendment is needed to clarify the definition of unreimbursed
expenditures that may be claimed by a political subdivision that owns a non-hospital
district public hospital, as well as the manner in which the political subdivision
funds are paid to the hospital and the source of the payment. The amendment
is also needed to improve the procedures for submission of the annual expenditure
statement by political subdivisions.
No comments were received on the proposal during the comment period.
The amendment is adopted under the Health and Safety Code, Chapter
12, Subchapter J, §§12.138 - 12.139, which requires the department
to adopt rules governing the distribution of tobacco settlement proceeds to
political subdivisions; and Health and Safety Code, §12.001, which provides
the Texas Board of Health (board) with authority to adopt rules to implement
every duty imposed by law on the board, the department, and the commissioner
of health.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on January 17, 2003.
TRD-200300305
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: February 6, 2003
Proposal publication date: November 1, 2002
For further information, please call: (512) 458-7236
25 TAC §§123.4, 123.6 - 123.12
The Texas Department of Health (department) adopts amendments
to §§123.4, and 123.6 - 123.12 concerning the regulation and certification
of respiratory care practitioners. Section 123.6 was adopted with changes
to the proposed text as published in the September 20, 2002, issue of the
Specifically, the amendments add an annual inactive status fee; delete
language concerning notarization; delete the signature of the commissioner
of health on certificates and permits; increase self-study continuing education
hours; and add language concerning sexual misconduct.
The following comment was received concerning the proposed section. Following
the comment is the department's response and any resulting changes.
Comment: Concerning §123.10(b)(4), the commenter opposed the increase
from four to six hours of self-directed Internet-based or computer-based courses.
Lack of control on the design and content of self-directed education centers
which provide continuing education hours for the respiratory care practitioner
was the primary concern.
Response: The department disagrees. The Respiratory Care Practitioner Certification
Program recommended that six hours of self-directed Internet-based or study
would benefit respiratory care practitioners that practice in rural areas
and have difficulty obtaining continuing education hours. The self-directed
Internet-based or computer-based studies must still be approved by the department.
No change was made as a result of comment.
The following change was made due to a staff comment.
Change: Concerning §123.6(c), "regulated in any profession" was inadvertently
deleted in the proposed rule text and has been added to final rule text.
The amendments are adopted under Texas Occupations Code, §604.052,
which requires the Respiratory Care Practitioners Certification Program to
adopt rules, with the approval of the Texas Board of Health; and the Health
and Safety Code, §12.001, that are reasonably necessary to properly perform
its duties under this Act.
§123.6.Application Requirements and Procedures.
(a)
General.
(1)
Unless otherwise indicated, an applicant must submit all
required information and documentation of credentials on official department
forms.
(2)
The department shall not consider an application as officially
submitted until the applicant pays the application fee and the fee clears
the appropriate financial institution. The fee must accompany the application
form.
(3)
The administrator shall send a notice listing the additional
materials required to an applicant who does not complete the application in
a timely manner. An application not completed within 30 days after the date
of the notice shall be invalid.
(b)
Required application materials.
(1)
Application form. The application form shall contain:
(A)
specific information regarding personal data, social security
number, birth month and day, place of employment, other state licenses and
certifications held, misdemeanor and felony convictions, educational and training
background, and work experience;
(B)
a statement that the applicant has read the Act and these
sections and agrees to abide by them;
(C)
the applicant's permission to the department to seek any
information or references it deems fit to determine the applicant's qualifications;
(D)
a statement that the applicant, if issued a certificate
or temporary permit, shall return the certificate or temporary permit and
identification card(s) to the department upon the revocation or suspension
of the certificate or temporary permit;
(E)
a statement that the applicant understands that fees submitted
are nonrefundable;
(F)
a statement that the applicant understands that materials
submitted become the property of the department and are nonreturnable (unless
prior arrangements have been made);
(G)
a statement that the information in the application is
truthful and that the applicant understands that providing false information
of any kind may result in the voiding of the application and failure to be
granted a certificate or permit, or the revocation of a certificate or permit
issued;
(H)
a statement that if issued a certificate or permit the
practitioner shall keep the department advised of his or her current mailing
address; and
(I)
the signature of the applicant which has been dated;
(J)
a full-face color photograph signed on the reverse side
with the applicant's signature as it appears on the application. The photograph
must have been taken within the two year period prior to application to the
department and the minimum size is one and one-half inches by one and one-half
inches.
(2)
Educational records. Applicants for a certificate, who
were not certified or registered in respiratory care by the NBRC on or before
September 1, 1985, or a temporary permit must submit:
(A)
a photocopy which is a true and exact copy of an unaltered:
(i)
an official diploma or official transcript indicating graduation
from high school;
(ii)
certificate of high school equivalency issued by the appropriate
educational agency; or
(iii)
official transcript from an accredited college or university
indicating that the applicant received a high school diploma or equivalency
or was awarded an associate, baccalaureate, or post-baccalaureate degree;
and
(B)
a photocopy which is a true and exact copy of an unaltered
certificate of completion from a respiratory care education program. The certificate
must contain:
(i)
name and number of the program (exactly as listed with
the educational accrediting body);
(ii)
name of the graduate;
(iii)
exact day and month individual is recognized as a program
graduate;
(iv)
accreditation statement; and
(v)
signatures of the medical director, program director and
administrative official; or
(C)
an expected graduation statement signed by the program
director. Within 30 days of the completion date noted in the statement, the
department must receive either:
(i)
a copy of the certificate of completion, as set out in
subparagraph (B) of this paragraph; or
(ii)
a statement signed by the program director indicating
that the applicant officially completed the program but the certificate is
not available within 30 days of the completion date.
(3)
Examination results.
(A)
If the applicant is making application for a temporary
permit, an examination score release form shall be signed allowing the department
to obtain the applicant's examination results from the NBRC, or other agency
administering the examination prescribed by the board.
(B)
If an applicant for a regular certificate is:
(i)
recognized as certified respiratory therapist or registered
respiratory therapist by the NBRC at the time of application, a photocopy
of the certificate issued by NBRC shall be submitted in lieu of examination
results; or
(ii)
unable to show proof of successful completion or otherwise
provide documentation acceptable to the department of the applicant's examination
results, the application shall be disapproved.
(4)
Employment/experience documentation report form. Persons
applying for any certificate or permit who are not recognized as a certified
respiratory therapist or registered respiratory therapist by the NBRC and
who are licensed, registered, or otherwise regulated in another state, territory,
or country at the time of application must submit with their applications
a properly completed employment/experience documentation report form signed
by their medical director as defined in §123.2 of this title (relating
to Definitions), attesting that the applicant is currently practicing, or
has practiced respiratory care within the 12-month period immediately preceding
application to the department.
(5)
Medical direction requirement. If the applicant is practicing
respiratory care in Texas at the time of application to the department, the
applicant shall obtain on the application form the signature and the license
number of the qualified medical director as defined in §123.2 of this
title (relating to Definitions) or other Texas licensed physician directing
the provision of respiratory care services.
(c)
Information/Documentation form. Persons applying for any
certificate or permit who are licensed, registered, or otherwise regulated
in any profession at the time of application to the department must submit
with their applications a properly completed information/documentation form
signed by an agency official.
(d)
Application processing.
(1)
Time periods. The department shall comply with the following
procedures in processing applications for a permit or certificate.
(A)
The following periods of time shall apply from the date
of receipt of an application until the date of issuance of a written notice
that the application is complete and accepted for filing or that the application
is deficient and additional specific information is required. A written notice
stating that the application has been approved may be sent in lieu of the
notice of acceptance of a complete application. The time periods are as follows:
(i)
letter of acceptance of application for permit or certification--14
working days. The notice of acceptance may include a statement that an application
for temporary permit received more than 45 days from the date of the applicant's
graduation will be held pending until the applicant is within 45 days of graduation;
and
(ii)
letter of application deficiency-14 working days.
(B)
The following periods of time shall apply from the receipt
of the last item necessary to complete the application until the date of issuance
of written notice approving or denying the application. The time periods for
denial include notification of the proposed decision and of the opportunity,
if required, to show compliance with the law, and of the opportunity for a
formal hearing. The time periods are as follows:
(i)
letter of approval-14 working days; and
(ii)
letter of denial of permit or certificate-180 working
days.
(2)
Reimbursement of fees.
(A)
In the event an application is not processed in the time
periods stated in paragraph (1) of this subsection, the applicant has the
right to request reimbursement of all fees paid in that particular application
process. Requests for reimbursement shall be made to the program administrator.
If the program administrator does not agree that the time period has been
violated or finds that good cause existed for exceeding the time period, the
request will be denied.
(B)
Good cause for exceeding the time period is considered
to exist if the number of applications for licensure and licensure renewal
exceeds by 15% or more the number of applications processed in the same calendar
quarter the preceding year, another public or private entity relied upon by
the department in the application process caused the delay, or any other condition
exists giving the department good cause for exceeding the time period.
(3)
Appeal. If a request reimbursement under paragraph (2)
of this subsection is denied by the program administrator, the applicant may
appeal to the commissioner of health for a timely, resolution of any dispute
arising from a violation of the time periods. The applicant shall give written
notice to the commissioner of health at the address of the department that
he or she requests full reimbursement of all fees paid because his or her
application was not processed within the applicable time period. The program
administrator shall submit a written report of the facts related to the processing
of the application and of any good cause for exceeding the applicable time
period. The commissioner of health shall provide written notice of the decision
to the applicant and the program administrator. An appeal shall be decided
in favor of the applicant if the applicable time period was exceeded and good
cause was not established. If the appeal is decided in favor of the applicant,
full reimbursement of all fees paid in that particular application process
shall be made.
(4)
Contested cases. The time periods for contested cases related
to the denial of licensure renewals are not included with the time periods
stated in paragraph (1) of this subsection. The time period for conducting
a contested case hearing runs from the date the department receives a written
request for a hearing and ends when the decision of the department is final
and appealable. a hearing may be completed within one to four months, but
may extend for a longer period of time depending on the particular circumstances
of the hearing.
(e)
Application approval.
(1)
The administrator shall be responsible for reviewing all
applications.
(2)
The administrator shall approve all applications which
are in compliance with subsections (a)-(c) of this section and which properly
document applicant eligibility, unless the application is disapproved under
the provisions of subsection (f) of this section.
(f)
Disapproved applications.
(1)
The department shall disapprove the application if the
person:
(A)
has not completed the requirements in subsection (b) of
this section;
(B)
has failed to pass the examination prescribed by the board
as set out in §123.8 of this title (relating to Examination) during the
period for which the temporary certificate, or temporary permit or temporary
permit extension, was valid, if applicable;
(C)
has failed to remit any applicable fees required in §123.4
of this title (relating to Fees);
(D)
has failed or refused to properly complete or submit any
application form(s) or endorsement(s), or presented false information on the
application form, or any other form or document required by the department
to verify the applicant's qualifications;
(E)
has been in violation of the Act, §123.14 of this
title (relating to Violations, Complaints, and Subsequent Actions), the code
of ethics as set out in §123.12 of this title (relating to Professional
and Ethical Standards), or any other applicable provision of this chapter;
(F)
has been convicted of a felony or misdemeanor, if the crime
directly relates to the duties and responsibilities of a respiratory care
practitioner as set out in §123.13 of this title (relating to Certifying
or Permitting Persons with Criminal Backgrounds To Be Respiratory Care Practitioners);
(G)
holds a license, certification, or registration to practice
respiratory care in another state or jurisdiction and that license, certification,
or registration has been suspended, revoked, or otherwise restricted by the
licensing entity in that state or jurisdiction for reasons to the person's
professional competence or conduct which could adversely affect the health
and welfare of a patient;
(H)
is not currently practicing, or has not practiced within
the 12-month period preceding the date of application, respiratory care, as
set out in §123.7(d)(1)(B) of this title (relating to Types of Certificates
and Temporary Permits and Applicant Eligibility); or
(I)
has submitted a copy of a National Board for Respiratory
Care, Inc. (NBRC) certificate in lieu of examination results in accordance
with subsection (b)(3)(B)(i) of this section, but is not recognized by the
NBRC as a certified respiratory therapist or registered respiratory therapist.
(2)
If after review the administrator determines that the application
should not be approved, the administrator shall give the applicant written
notice of the reason for the proposed decision and of the opportunity for
a formal hearing. The formal hearing shall be conducted according to the Administrative
Procedure Act, Texas Government Code ?2001, et seq. Within 10 days after receipt
of the written notice, the applicant shall give written notice to the administrator
that the applicant either waives the hearing, or wants the hearing. Receipt
of the written notice is deemed to occur on the tenth day after the notice
is mailed unless another date of receipt is reflected on a United States Postal
Service return receipt. If the applicant fails to respond within 10 days after
receipt of the notice of opportunity, or if the applicant notifies the administrator
that the hearing be waived, the applicant is deemed to have waived the hearing.
If the hearing has been waived, the department shall disapprove the application.
(3)
An applicant whose application has been disapproved under
paragraph (1)(E) and (F) of this subsection shall be permitted to reapply
after a period of not less than one year from the date of the disapproval
and shall submit with the reapplication proof satisfactory to the department
of compliance with all rules of the board and the provisions of the Act in
effect at the time of reapplication. The date of disapproval is the effective
date of a disapproval order signed by the commissioner of health.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on January 17, 2003.
TRD-200300308
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: February 6, 2003
Proposal publication date: September 20, 2002
For further information, please call: (512) 458-7236
Chapter 411.
STATE AUTHORITY RESPONSIBILITIES
Subchapter B. INTERAGENCY AGREEMENTS
Subchapter R. STANDARDS FOR CONDUCT GOVERNING THE RELATIONSHIP BETWEEN THE TEXAS DEPARTMENT OF HEALTH AND PRIVATE DONORS AND PRIVATE ORGANIZATIONS
Subchapter X. POSTING OF FINAL ENFORCEMENT ACTIONS
Chapter 2.
EMERGENCY PREPAREDNESS
Chapter 37.
MATERNAL AND INFANT HEALTH SERVICES
Chapter 61.
CHRONIC DISEASES
Chapter 98.
HIV AND STD PREVENTION
Chapter 102.
DISTRIBUTION OF TOBACCO SETTLEMENT PROCEEDS TO POLITICAL SUBDIVISIONS
Chapter 123.
RESPIRATORY CARE PRACTITIONER CERTIFICATION
Part 2.
TEXAS DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION