TITLE 25.HEALTH SERVICES

Part 1. TEXAS DEPARTMENT OF HEALTH

Chapter 33. EARLY AND PERIODIC SCREENING, DIAGNOSIS, AND TREATMENT

The Government Code, §531.021(b), transferred rulemaking authority for Medicaid provider reimbursement rates to the Texas Health and Human Services Commission. In accordance with that statute, we are transferring 25 TAC §33.310 and §33.311, which concern dental services under the Early and Periodic Screening, Diagnosis, and Treatment Program. The rules are being renumbered as 1 TAC §355.8443 and §355.8445 under Title 1, Part 15, Chapter 355, Subchapter J, Division 23 of the Texas Administrative Code. The transfer became effective September 1, 1997.

A complete conversion chart is published in the Tables and Graphics section of this issue.

Figure: 1 TAC Chapter 355

Filed with the Office of the Secretary of State on March 4, 2003.

TRD-200301728

Chapter 38. CHILDREN WITH SPECIAL HEALTH CARE NEEDS SERVICES PROGRAM

25 TAC §§38.2 - 38.4, 38.10, 38.12, 38.13, 38.15, 38.16

The Texas Department of Health (department) adopts amendments to §§38.2-38.4, 38.10, 38.12, 38.13, 38.15 and new §38.16, concerning the Children with Special Health Care Needs Services Program (CSHCN). Sections 38.2, 38.3, 38.4, 38.10, 38.13, 38.15 and 38.16 are adopted with changes to the proposed text as published in the September 20, 2002, issue of the Texas Register (27 TexReg 8873). Section 38.12 is adopted without changes and will not be republished.

Specifically, amendments to §38.2 clarify certain definitions, add definitions of "new client," "ongoing client," "waiting list client," "health care benefits," and "urgent need for health care benefits", and delete the definition of "usual and customary." Amendments to §38.3 clarify certain language, move information related to the waiting list to new §38.16, and delete information related to a separate waiting list for family support services. Amendments to §38.4 clarify diagnosis and evaluation services and certain other language, add coverage of renal transplants if cost effective for the program, delete language reflecting a separate waiting list for family support services and the language regarding "Social Security Income (SSI) purchase of service" which is no longer applicable, state that the program may limit reimbursements and/or prior authorizations for certain services for the purpose of budget alignment as stipulated in §38.16, delete a subsection concerning budgetary limitations more fully addressed in new §38.16, and add language to clarify authorization request submission deadlines and denial, reconsideration, and appeal of service authorizations. Amendments to §38.10 clarify some claims submission requirements, add language to clarify denial, reconsideration, and appeal of claims, add coverage and payment strategy for renal transplants, and delete information related to budget alignment that is addressed in new §38.16. An amendment to §38.12 provides for client notification if the client must be placed on a waiting list for program services. Amendments to §38.13 clarify the family, provider, and applicant/client appeal processes.

The department has amended §38.15 concerning the operation of the Children with Special Health Care Needs Advisory Committee. Specifically, the committee has been continued until January 1, 2007; the membership of the committee has been decreased from 18 to 15 and membership categories have been combined; two alternate members have been added; the process for filling vacancies in the offices of presiding officer and assistant presiding officer has been changed; standards of conduct for members have been established; and the components that the committee must include in an annual report to the board have been clarified.

New §38.16 defines the detailed process by which the CSHCN program shall align its budget annually. In 1999, the 76th Legislature amended Health and Safety Code, Chapter 35, significantly changing CSHCN's eligibility criteria and covered services, and authorizing CSHCN to establish a waiting list for services to enable it to align anticipated expenditures with its appropriated budget. In September 2001, CSHCN projected significant budget constraints and instituted a waiting list for rehabilitation (medical) services effective October 5, 2001. New §38.16 addresses the management of the waiting list and also establishes criteria and the protocol to be utilized by CSHCN to determine "urgent need for health care benefits."

Changes made to the proposed text result from comments received during the comment period. The details of the changes are described in the summary of comments that follow. Other minor changes were made due to staff comments to clarify the intent and improve the accuracy of the sections.

Comment: Concerning the rules in general, one commenter stated that the basic problem with the proposed rules was the message that the department is willing to make cuts to the program. The commenter added that the legislature could target the program for cuts if the department appears willing to accept cuts.

Response: The department appreciates this comment, but the CSHCN program's expenditures may not exceed its appropriation. No change was made as a result of this comment.

Comment: Concerning the rules in general, one commenter stated that the program must ensure that administrative changes and requirements do not become burdensome to providers, especially physicians.

Response: The department agrees that the continuing participation of providers is essential to the program's capacity to serve clients, and therefore the department will consider the needs and recommendations of providers during the policy revision process. No change was made as a result of this comment.

Comment: Concerning the rules in general, one commenter requested that procedures for prior approval of diagnosis and evaluation and family support services be developed with provider input and not create an obstacle to payment.

Response: The department appreciates the comment and will consider the needs and recommendations of providers during the policy revision process. No changes were made as a result of this comment.

Comment: Concerning the rules in general, one commenter requested that family supports not take second place to health benefits.

Response: Family support services are included in the array of services offered by the CSHCN program. However, for the purpose of budget alignment as stipulated in §38.16, the department may allow only limited prior authorized family support services. No changes were made as a result of this comment.

Comment: Concerning the rules in general, several commenters stated that provider reimbursement should not be limited or decreased.

Comment: Concerning the rules in general, several commenters requested board approval before any limitations in reimbursements or prior authorization requirements are implemented.

Response: In order to retain flexibility to ensure that anticipated costs do not exceed appropriations, the department maintains rule language to allow the program to reduce/ limit reimbursements to contractual service providers and reduce/ limit prior authorization for certain services for the purpose of budget alignment as stipulated in §38.16. However, the sections of the proposed rules that specify reductions in reimbursements to fee-for-service providers for budget alignment (§§38.10, 38.10(3), 38.16(b)(2)(F), 38.16(c)(3), and 38.16(d)(4)(C)) are removed as a result of this comment. Any future changes in reimbursements to fee-for-service providers must occur through the rule change process.

Comment: Concerning the rules in general, several commenters stated that the rules should include a notification period prior to implementation of any changes in health care benefits or reimbursements. The commenters suggested several notice periods, including 30 days, 45-60 days, and 60-days. Several commenters stated that a 30-day notice was not sufficient.

Response: The department will provide notice of changes in health care benefits or reimbursement due to budget alignment at the time that the action is taken and as provided in the rules. Any future changes in reimbursements to fee-for-service providers must occur through the rule change process.

Comment: Concerning the rules in general, several commenters stated that the reduction or limitation of reimbursement in order to address budget shortfalls or help fund services for children on the waiting list should be instituted only on a temporary basis with a 60-day notice.

Response: In order to retain flexibility to ensure that anticipated costs do not exceed appropriations, the department maintains rule language to allow the program to reduce/limit reimbursements to contractual service providers and reduce/ limit prior authorization for certain services for the purpose of budget alignment as stipulated in §38.16. The program may consider removing reimbursement reductions if and when the program's anticipated expenditures no longer are expected to exceed its appropriation. However, as a result of these and other comments, the sections of the proposed rules that specify reductions in reimbursements to fee-for-service providers for budget alignment (§§38.10, 38.10(3), 38.16(b)(2)(F), 38.16(c)(3), and 38.16(d)(4)(C)) are removed and any future changes in reimbursements to fee-for-service providers must occur through the rule change process.

Comment: Concerning the rules in general, several commenters requested that notification of the right to appeal accompany any notice of changes in health care benefits or reimbursement, including changes due to a budget shortfall.

Response: The department believes it must retain maximum flexibility to ensure that anticipated costs do not exceed appropriations. Thus, changes in reimbursement or changes in health care benefits due to budget alignment will not be subject to appeal. Applicants/clients and/or providers will retain the right to appeal program decisions that adversely affect their individual eligibility/services/reimbursement, but not decisions necessary for budget alignment which affect all members of a group of applicants/clients or providers. Changes have been made to §38.12 and §38.13 to clarify language regarding notice to applicants/clients and providers and the appeal process.

Comment: Concerning the rules in general, one commenter requested that the Board of Health authorize any changes in program benefits.

Response: The department agrees. The board authorizes changes in program benefits through the rulemaking process. No changes have been made as a result of this comment.

Comment: Concerning §38.2(8)(A)-(C) and §38.3(a)(4), several commenters supported no change to the eligibility requirements with regard to age. Several other commenters did not support the continuation of services to individuals 21 years of age and older.

Response: Health and Safety Code §35.003(a)(3) directs the CSHCN Program to provide rehabilitation services to children with special health care needs, and §35.0022(a) of the Act defines a child with special health care needs as a person younger than 21 years of age and who has a chronic physical or developmental condition or has cystic fibrosis regardless of age. The department may not change statutory eligibility criteria by rule. No changes were made as a result of these comments.

Comment: Concerning §38.2(13), several commenters stated that the language was confusing and recommended that the word "client" only be used to refer to an individual currently enrolled in the CSHCN program.

Response: The department has amended §38.2(13) as proposed to clarify that a client is a person who is determined eligible for any CSHCN program services. However, no changes were made as a result of these comments.

Comment: Concerning §38.2(13) and §38.2(13)(A)(ii) and with regard to the definition of a "new client", one commenter recommended a change in the definition so that an individual who left the program due to remission of an illness would be given priority should he or she need to return to the program within 12 months.

Response: The department has amended §38.16(d)(1)(A)(i)-(vi) to establish priorities for taking clients off the waiting list.

Comment: Regarding §§38.2(22), 38.4(2), and 38.16(b)(2)(C)(ii), several commenters supported the provision of diagnostic and evaluation services to determine "urgent need".

Response: The department has added §38.16(e)(5), which states that information obtained from diagnosis and evaluation services will be used to determine "urgent need".

Comment: Regarding §38.2(30) and §38.2(46), several commenters supported the integration of family supports into the array of CSHCN benefits.

Response: The department agrees, and deleted §38.3(9) concerning separate waiting lists for rehabilitation services and family support services from the rules as proposed. No additional changes were made as a result of these comments.

Comment: Concerning §38.2(56), one commenter recommended that §38.2(56)(A) be altered to read "the customary charge, which is the unweighted average of the provider's charges on the same procedure over a twelve month period conducted on the date of service of the charge in question" and that section (B) be revised to read "the prevailing charge, which shall be the unweighted average of the customary charges for the same procedure performed by all providers with the same medical specialty in the county where the service was provided and every county in the state of Texas contiguous thereto".

Response: Review of the rules indicates that since the term "usual and customary" is not used in the chapter, the definition at §38.2(56) is unnecessary and has been deleted.

Comment: Concerning §38.3(a), one commenter asked that the department consider the needs of clients who have been in the program for years, and whose families still have no other sources of assistance. Another commenter stated that if adopted, the proposed rules will disqualify her child by changing the meaning, specifications, and qualifications, especially for financial eligibility requirements.

Response: Program eligibility criteria have not changed. The department may move ongoing clients to the waiting list to reduce the amount of funds expended by the program. The department believes that it must retain maximum flexibility to ensure that anticipated program costs do not exceed appropriations. No changes have been made as a result of these comments.

Comment: Concerning §38.3(a)(1), one commenter stated that a person with an incurable disease should be covered permanently and not have to worry about whether he or she will have insurance from year to year. Another commenter questioned the necessity of filling out paperwork each year when a diagnosis will not change.

Response: Eligibility for CSHCN health care benefits is based on medical, financial, and other criteria, and annual re-certification is necessary to verify all eligibility information. No changes were made as a result of these comments.

Comment: Regarding §38.3(a)(1), several commenters supported the provision of up to 60 days of diagnosis and evaluation services.

Response: The section as proposed authorizes up to 60 days of program coverage for diagnosis and evaluation services. No changes were made as a result of the comments.

Comment: Concerning §38.3(a)(1)-(2) and §38.3(a)(8), several commenters supported the requirement for annual re-certification for CSHCN program health care benefits.

Response: The department agrees that annual re-certification is necessary to assure that all clients continue to meet all eligibility criteria. No changes were made as a result of the comments.

Comment: Concerning §38.3(a)(3), one commenter supported the requirement that clients must utilize available insurance coverage and apply for other possible programs to cover expenses.

Response: The department agrees that requiring applicants/clients to utilize available third party coverage is necessary to assure that program resources are available to as many applicants/clients as possible. The department proposed no changes to this section, and no changes were made as a result of this comment.

Comment: Concerning §38.3(a)(8), one commenter recommended amending the paragraph by adding the following: "i.e., within 365 days from the first day of the client's current eligibility period, or within 366 days during a leap year".

Response: The department agrees and has amended the section accordingly.

Comment: Concerning §38.3(a)(8), several commenters supported giving priority to children who leave the program due to remission but who return with an urgent need for services, rather than treating them as new clients.

Response: The department has amended §38.16(d)(1)(A)(i)-(vi) to establish priorities for taking clients off the waiting list.

Comment: Concerning §38.3(b), one commenter recommended that the last sentence of the proposed rules be changed and a sentence be added to read as follows: "However, the program may offer, provide, or seek reimbursement for case management to individuals (and their families) who are neither eligible nor seeking eligibility for the program's health care benefits. Reimbursements received for case management services will be utilized to benefit the CSHCN program."

Response: The department has clarified §38.3(b) and §38.4(b)(4)(B) to address this comment. The component of the comment related to reimbursement will be taken into consideration by the department and handled as appropriate through policy.

Comment: Concerning §38.3(b) and §38.4(b)(4), several commenters supported the provision of case management services for children receiving CSHCN health care benefits and for children on the waiting list for CSHCN when other case management resources are not available as well as other children not eligible for or seeking program health care benefits.

Response: The sections as proposed authorize these case management services. No changes were made as a result of these comments.

Comment: Concerning §38.3(b) and 38.4(b)(4)(B), one commenter requested clarification of whether individuals on the waiting list were eligible for case management.

Response: Section 38.3(b) and §38.4(b)(4)(B) have been amended to clarify that individuals on the waiting list are eligible for CSHCN case management services. Section 38.16(f)(4) as proposed also addresses the provision of case management to clients on the waiting list.

Comment: Concerning §38.4(b)(2), one commenter noted that there was no other way to pay for diagnostic and evaluation services and urged the department to pay for these services even if the child was going on the waiting list. Concerning §38.16(b)(2)(C)(ii), two other commenters recommended that diagnostic and evaluation services continue to be covered during a budget shortfall.

Response: The department believes that it must retain maximum flexibility to ensure that anticipated costs do not exceed appropriations. However, §§38.4(b)(2), 38.16(b)(2)(C)(iii), and 38.16(e)(5) have been amended to clarify further that the CSHCN Program may provide diagnosis and evaluation services on a short-term basis, if needed to assess whether clients on the waiting list have urgent need, with prior authorization and approval by the Medical Director or other designated medical staff.

Comment: Concerning §38.4(b)(2), one commenter stated that the language regarding coverage of diagnosis and evaluation services for applicants for health care benefits should be clarified because such applicants have at that time not been determined eligible for program services.

Response: The department agrees, and has amended §§38.3(a)(1), 38.4(b)(2), 38.16(b)(2)(C)(ii), and 38.16(d)(1)(D)(ii) accordingly.

Comment: Concerning §38.4(b)(2) and §38.16(e), several commenters stated that the medical director and assisting physicians rather than other CSHCN program staff should decide which applicants/clients have urgent needs and which have special health care needs. Several other comments questioned who would determine what is an urgent need.

Response: The department has added clarification language to §38.4(b)(2) and §38.16(e) to address these comments.

Comment: Concerning §38.4(b)(3)(E)(v) and §38.10(3)(R)(ii), several commenters supported the addition of renal transplants to the array of services.

Response: Both sections as proposed authorize renal transplants if the projected cost of the transplant and follow-up care is less than the cost of continuing dialysis. No changes were made as a result of these comments.

Comment: Concerning §38.4(b)(5)(B)(iii)-(iv) and §38.16(b)(2)(C)(i), several commenters supported the preauthorization of family support services and giving priority to medical services over family support services during budget shortfall situations.

Response: The department appreciates these supportive comments. No changes were made to the current proposed rule language as a result of these comments.

Comment: Concerning §38.4(b)(5)(D), one commenter recommended working with the Texas Workforce Commission regarding daycare for children with special needs.

Response: The department believes that this suggestion may be implemented through program policy without the need for a rule change. No changes were made as a result of this comment.

Comment: Concerning §38.4(d)(3), one commenter supported limitations on services and coverage to address budget shortfalls.

Response: Limitations on both services and coverage are among the options the department will consider for budget alignment. No changes were made as a result of this comment.

Comment: Concerning §38.10, one commenter recommended instituting a sliding scale for procedure/item per occurrence.

Response: Health and Safety Code §35.0034 allows cost sharing. However, after an analysis of the projected expenditure savings and the projected cost of administering cost sharing, the department determined that implementing cost sharing at this time would not be cost effective. No changes were made as a result of this comment.

Comment: Concerning §38.10(1)(A), one commenter recommended adding the following language: "A claim must be processed and paid before the end of the second state fiscal year following the state fiscal year in which the service was provided to the client".

Response: The department agrees and has amended §38.10(1) accordingly.

Comment: Concerning §38.10(2) and §38.10(2)(A), one commenter supported the proposed time limitations on payment of claims and the process for handling health insurance denial and nonresponse.

Response: The department appreciates this comment. No changes were made to the sections as proposed.

Comment: Concerning §§38.10(3)(H), 38.10(3)(I)(i), 38.10(3)(I)(iii), and 38.10(3)(S)-(T), one commenter stated that following CMS codes should be limited to partial medical issues and procedures because CMS codes are specific to adults, but not the population under age 21.

Response: The CSHCN Program attempts to align program reimbursements with the Texas Medicaid Program reimbursement amounts for similar services, and the CMS reimbursement amounts are the amounts used by the Texas Medicaid Program. No changes were made as a result of this comment.

Comment: Concerning §38.10(6)-(7), several commenters did not support the removal of these sections from the rules and requested that board oversight be maintained.

Response: Section 38.16 replaces §38.10(6)-(7) and describes in detail the program's budget alignment methodology. In order to be implemented, §38.16 must be adopted by the board in rule. Therefore, board oversight is maintained. The sections of the proposed rules that specify reductions in reimbursements to fee-for-service providers for budget alignment (§§38.10, 38.10(3), 38.16(b)(2)(F), 38.16(c)(3), and 38.16(d)(4)(C)) are removed and any future changes in reimbursements to fee-for-service providers must occur through the rule change process.

Comment: Concerning §38.12(a)(10), several commenters did not support the removal of any ongoing clients from the program.

Comment: Concerning §38.13(b)(1), one commenter stated that this section and §38.16(b)(1) should contain similar language concerning a notice of appeal right and the time period for an appeal.

Response: Section 38.16(b)(1) as proposed states that both clients and providers shall receive written notice of reductions or limitations of services, coverage, and/or reimbursement, but does not afford clients or providers an administrative review or a hearing if the reductions or limitations must be imposed for budget alignment. Section 38.13(b)(1) has been amended to assure that applicants/clients will receive written notice, including the right to an administrative review and access to a hearing, if the program proposes to deny, modify, suspend, or terminate eligibility and/or health care benefits, unless the program's actions are authorized by §38.16 for budget alignment.

Comment: Concerning §38.15, several commenters supported the continuation of the Children with Special Health Care Needs Advisory Committee.

Response: The department agrees that the Children with Special Health Care Needs Advisory Committee provides valuable guidance to the department and should be continued. Section 38.15(e) as proposed extends the committee's existence until January 1, 2007.

Comment: Concerning §38.15(f)(1), several commenters requested that two alternate members be appointed.

Response: The department agrees and has amended §38.15(f) accordingly.

Comment: Concerning §38.15(f)(1), several commenters requested that family representatives be allowed to have alternates with proxy to vote and that family representatives constitute a majority of the total voting membership.

Response: The department has amended §38.15(f)(1) to include one consumer and one non-consumer as alternate members. The alternate members may vote in accordance with language added in §38.15(f)(1)(C).

Comment: Concerning §38.15(f)(1)(A), one commenter stated that family members should be able to name a person to represent them and to vote by proxy when they are unable to participate.

Response: The department has amended §38.15(f) to include alternates and to stipulate when they may vote. The board will appoint alternates as well as other committee members.

Comment: Concerning §38.15(i)(5), one commenter stated that the rules should require a quorum of eight members for the conduct of committee business.

Response: The department agrees, and §38.15(i)(5) defines a quorum as eight committee members. No changes were made as a result of the comment.

Comment: Concerning §38.15(n)(3), several commenters requested clarification of the meaning of the word "impropriety".

Response: The department has amended §38.15(n)(3) to eliminate the word "impropriety" and has added paragraphs §38.15(n)(4)-(6) to clarify further the standards of behavior for all committee members, and to define the phrase "personal or private interest".

Comment: Concerning §38.15(n)(3), one commenter proposed substituting the phrase "conflict of interest" for "impropriety".

Comment: Concerning section §38.16 as a whole, one commenter recommended further investigation and development of plans to provide services to children on the CSHCN health benefits program by "buy-in" into an insurance program such as CHIP; and hiring of an ombudsman to facilitate cost-sharing between the CSHCN Program and third party payers as options for achieving cost reductions.

Response: The department appreciates and will consider these suggestions. However, since current rules allow these initiatives, no changes were made as a result of the comment.

Comment: Concerning §38.16(b)(2)(A), several commenters supported the implementation of administrative efficiencies.

Response: In the last year, the department has implemented many "administrative efficiencies" affecting program operations that did not require rule changes, and will consider any other specific suggestions. No changes were made as a result of these comments.

Comment: Concerning §38.16(b)(2)(A)-(F), several commenters requested that the department reconsider the prioritization of changes to address the shortfall and reduce reimbursement levels for providers or types of services covered before implementing a waiting list. The commenters stated that cuts for provider reimbursement and for types of services should occur before a waiting list is implemented.

Response: By rule, effective October 11, 2001, the department reduced reimbursements to certain providers, acknowledging that the CSHCN Program must balance the need to retain providers while paying for needed services covered by the CSHCN health care benefits program. No changes were made as a result of these comments.

Comment: Concerning §38.16(b)(2)(B), several commenters supported services for all eligible children and clients and opposed a waiting list. Several commenters requested that children with urgent need on the waiting list receive services. One commenter urged that the program be adequately funded in order to serve all eligible clients.

Response: The department believes that it must retain maximum flexibility to ensure that anticipated costs to do exceed appropriations, including the option of utilizing a waiting list. No changes were made as a result of these comments.

Comment: Concerning §38.16(b)(2)(B), one commenter supported the return of coverage based on diagnosis so that clients with serious illness could receive care for their conditions.

Response: Health and Safety Code §35.005(b)(1) specifically states that the board by rule "may not establish an exclusive list of coverable medical conditions;". No changes were made as a result of this comment.

Comment: Concerning §38.16(b)(2)(B), one commenter requested ongoing monitoring and reporting of the status of children on the waiting list.

Response: Monitoring and reporting of the status of children on the waiting list are conducted according to program policy. Case management services are available to individuals on the waiting list. No changes were made as a result of this comment.

Comment: Concerning §38.16(b)(2)(B), one commenter recommended an interest list rather than a waiting list.

Response: Health and Safety Code §35.003(c) states that a waiting list composed of eligible persons, rather than those who have only expressed an interest in program coverage/services, may be established if necessary to remain within budgetary limitations. No changes were made as a result of this comment.

Comment: Concerning §38.16(b)(2)(C)(i), one commenter supported the utilization of family support services to prevent out-of-home placements.

Response: Section 38.16(b)(2)(C)(i) as proposed authorizes family support services to prevent out-of-home placements. The department appreciates this supportive comment. No changes were made as a result of the comment.

Comment: Concerning §38.16(b)(2)(D), several commenters supported giving priority to children who leave the program due to remission but who return with an urgent need for services, rather than treating them as new clients.

Response: The department has amended §38.16(d)(1)(A)(i)-(vi) to establish priorities for taking clients off the waiting list.

Comment: Concerning §38.16(b)(2)(D), §38.16(b)(2)(G)(i)-(iv), and §38.16(d), one commenter recommended structuring the waiting list, and removing clients from the waiting list, as follows rather than by order of eligibility (date):

1. Children and Youth (less than 21 years of age): those with urgent need, ordered by date of application receipt; those without urgent need, but previously served by the Program, ordered by date of application receipt; or all others, ordered by date of application receipt.

2. Adults (21 or more years of age): those with urgent need, ordered by date of application receipt; those without urgent need, but previously serviced by the Program, ordered by date of application receipt; or all others, ordered by date of application receipt.

Several other comments supported the removal of children with urgent need from the waiting list prior to other children.

Response: Based on input during the comment period, the department has amended §38.16(d)(1)(A)(i)-(vi) to take clients off the waiting list according to the original date/time that starts the client's latest uninterrupted sequence of eligibility and in the following group order.

1. Children and youth less than 21 years of age with urgent need for health care benefits.

2. Adults (21 years of age and older) with urgent need for health care benefits.

3. Children and youth less than 21 years of age who do not have an urgent need for health care benefits and who were placed on the waiting list when they were ongoing clients and who have had no lapse in eligibility while on the waiting list or who are new clients who are re-applicants for health care benefits and who have had a lapse in eligibility for no longer than the 12 months prior to the date/time that starts their latest uninterrupted sequence of eligibility.

4. Adults (21 years of age and older) who do not have an urgent need for health care benefits and who were placed on the waiting list when they were ongoing clients and who have had no lapse in eligibility while on the waiting list or who are new clients who are re-applicants for health care benefits and who have had a lapse in eligibility for no longer than the 12 months prior to the date/time that starts their latest uninterrupted sequence of eligibility.

5. All other children and youth less than 21 years of age who do not have an urgent need for health care benefits.

6. All other adults (21 years of age and older) who do not have an urgent need for health care benefits.

Comment: Concerning §38.16(b)(2)(F) and §38.16(c)(3), several commenters recommended capping benefits at $100,000 per child as a means of addressing budget shortfalls.

Response: At the present time, imposing an annual cap on services provided to individual children is not feasible due to limitations in current resources and available technology. The department is also concerned that implementation of such a cap would place an undue burden on providers and might result in loss of providers. Finally, implementation of a cap would require extensive enhancements to the claims administrator contract. No changes were made as a result of these comments.

Comment: Concerning §38.16(b)(2)(F) and §38.16(c)(3), one commenter recommended an annual cap on total expenses per program recipient as a last resort. The cap, if necessary, should be established annually by the Board of Health.

Comment: Concerning §38.16(b)(2)(F)-(G) and §38.16(d)(2)(A), one commenter requested that reductions in provider reimbursement not be built into the program's budget base and continue into perpetuity. Reductions in provider reimbursement should not be used to meet the full range of service needs identified by the program, but should be reserved for the most critical problems as a stopgap measure. Under the proposed rules, it appears that the department can continue to cut provider reimbursement as long as any waiting list exists. Another commenter stated that using reimbursement reductions to serve children on the waiting list with urgent need should be time-limited.

Comment: Concerning §38.16(b)(2)(F), one commenter recommended that this expense reduction mechanism should be utilized only to provide care to children with urgent need.

Response: The sections of the proposed rules that specify reductions in reimbursements to fee-for-service providers for budget alignment (§§38.10, 38.10(3), 38.16(b)(2)(F), 38.16(c)(3), and 38.16(d)(4)(C)) are removed as a result of this comment. Any future changes in reimbursements to fee-for-service providers must occur through the rule change process.

Comment: Concerning §38.16(b)(2)(G), several commenters did not support removing ongoing clients from the program, and one commenter urged the department to delete any rule language that removes ongoing clients from the program as a way to accommodate the budget shortfall. Other commenters urged the department to determine a more patient-centered approach to the current budget shortfall that will enable all clients to continue receiving services and not risk the health of some by placing them on a waiting list. Another commenter had reservations about placing ongoing clients on the waiting list. Still another commenter stated that the general idea of moving ongoing clients to the waiting list seemed to comply with the "letter of the law" but perhaps not the intention of the law.

Response: The department may move ongoing clients to the waiting list to reduce the amount of funds expended by the program. The department believes that it must retain maximum flexibility to ensure that anticipated program costs do not exceed appropriations. Health and Safety Code §35.003 directs the board by rule to establish a system of priorities and includes the establishment of a waiting list of eligible persons as a means of remaining within budgetary limitations. No changes were made as a result of these comments.

Comment: Concerning §38.16(b)(2)(G), several commenters asked that clients without any other resources not be moved to the waiting list, and several commenters did not support moving any current clients under age 21 to the waiting list. One commenter disagreed with moving individuals over the age of 17 to the waiting list because they were not eligible for CHIP.

Comment: Concerning §38.16(b)(2)(G)(i)-(iv), several commenters stated that proposals to discontinue coverage for adults with cystic fibrosis (CF), as well as limiting coverage for services for people of all ages with CF, such as medication and inpatient healthcare, will have a significant negative impact on the lives of people of all ages with CF. The commenters stated that these dramatic cuts cannot be enacted without alternatives to provide care for clients with CF. Another commenter stated that moving clients to the waiting list based on other resources was a good idea except that her son's one resource, Medicare, does not cover prescription drugs. This commenter noted that if the source of coverage held by the client fails to cover prescription drugs, the client would be denied drugs at the point of declaring him ineligible or placing him on a waiting list. The commenter also stated that the age progression provision must be coupled with "and based on medically urgent need". This age group progression could be a fair system of service allocation, but in practice moving adults with CF to the waiting list would likely be a direct cause of early death. Several commenters who are themselves adults with CF stated that CSHCN is their only resource or their lifeline and requested that they not be moved to the waiting list. An additional commenter noted that the loss of CSHCN would leave some adults without any coverage.

Response: The department may move ongoing clients to the waiting list to reduce the amount of funds expended by the program. The department believes that it must retain maximum flexibility to ensure that anticipated program costs do not exceed appropriations. The order of movement of ongoing clients to the waiting list is based on consideration of health care resources followed by age. Section 38.16(b)(2)(F)(i) has been amended to state that other health resources to be considered when moving ongoing clients to the waiting list will be those comparable to Medicaid or CHIP.

Comment: Concerning §38.16(b)(2)(G)(iii), several commenters supported moving clients currently receiving services who are 21 years of age and older to the waiting list. One commenter stated that if there is no additional funding, the first step to moving children with urgent need from the program waiting list to active service was moving adults presently being served to the waiting list.

Comment: Concerning §38.16(b)(2)(G)(iii), several commenters stated that the use of a waiting list for individuals with CF 21 years of age or older will serve to accomplish by administrative action the elimination of services to adults with CF. Several other commenters opposed provisions to move the individuals with CF to a waiting list, as this would redefine eligibility to exclude these individuals or to discontinue critical life-giving service. The commenters also opposed placing clients age 18 or older on the waiting list. The commenters also stated that if the waiting list is continued, individuals over 18 should be placed on the waiting list not by virtue of their age, but using other criteria such as access to additional health insurance options.

Response: The department may move ongoing clients to the waiting list to reduce the amount of funds expended by the program. The department believes that it must retain maximum flexibility to ensure that anticipated program costs do not exceed appropriations. The order of movement of ongoing clients to the waiting list is based on consideration of health care resources followed by age and does not affect the client's eligibility for CSHCN services. No changes were made as a result of these comments.

Comment: Concerning §38.16(d), two commenters stated that the term "budget excess" should be defined so that there is a clear understanding of when the waiting list will be downsized or eliminated.

Response: The term "budget excess" has been removed from §38.16(a)(2) and §38.16(d) and clarifying language has been provided.

Comment: Concerning §38.16(d), two commenters stated that the provisions outlining the return of individuals from the waiting list to the program do not specifically state that this rule applies to those individuals who were placed on the waiting list due to age, and that this result should be clarified.

Response: Based on input during the comment period, the department has revised §38.16(d)(1)(A)(i)-(vi) to take clients off the waiting list according to the original date/time that starts the client's latest uninterrupted sequence of eligibility and in the following group order.

1. Children and youth less than 21 years of age with urgent need for health care benefits.

2. Adults (21 years of age and older) with urgent need for health care benefits.

5. All other children and youth less than 21 years of age who do not have urgent need for health care benefits.

6. All other adults (21 years of age and older) who do not have an urgent need for health care benefits.

This order for taking clients off the waiting list applies to all clients.

Comment: Concerning §38.16(d), one commenter requested that when decisions regarding priority for urgent need are made, the department should consider that families with funding may have needs but they are not totally without resources.

Response: The department agrees, and §38.16(e) addresses this comment. No changes were made as a result of this comment.

Comment: Concerning §38.16(d)(2), one commenter stated that in the absence of urgent need, the priority for re-entry into the program for children whose eligibility has lapsed should be limited to a 12-month lapse. The commenter recommended that clients without an urgent need for health benefits and without prior program eligibility for health care benefits and clients whose program eligibility has lapsed for more than 12 months be considered equally on the basis of date and time of application and reapplication.

Response: The department agrees. Section 38.16(d)(1)(A)(i)-(vi) has been amended to establish priorities for taking clients off the waiting list.

Comment: Concerning §38.16(d)(2), one commenter stated that for budget alignment purposes, the program may not have enough "budget excess" to take clients off the waiting list and provide them continuing services. The rules should allow the program to pay for limited services to clients who may remain on the waiting list.

Response: The department agrees. Section 38.16(d)(1)(C) has been added to address this comment.

Comment: Concerning §38.16(d)(3)(B), one commenter did not support paying bills for the previous year.

Response: The department believes that it must retain maximum flexibility to achieve budget alignment. The department wants to assure that as much funding as possible can be used to support client services. No changes were made as a result of this comment.

Comment: Concerning §38.16(e), one commenter questioned whether a client with a terminal condition would be considered a top priority. Another commenter questioned whether being eligible for SSI would automatically equate to "urgent need", and a third commenter stated that those who are critically ill should have first priority.

Response: The criteria for determining "urgent need" are listed in §38.16(e). No changes were made as a result of these comments.

Comment: Concerning §38.16(e), several commenters stated that in the event of budget limitations, children with urgent need should never be excluded.

Response: The department supports the goal of a CSHCN program budget that will allow all children with urgent need to be served. However, the CSHCN program must operate within its appropriation. Section 38.16(c) has been amended to allow the program to serve as many clients on the waiting list who have an urgent need for health care benefits as possible.

Comment: Concerning §38.16(e), several commenters addressed concerns regarding clients who are not returned to the program from the waiting list due to being considered to have less urgent needs. The commenters stated that these individuals would either be without services when they experienced emergencies or would become more ill with more extensive and costly medical needs. Another commenter requested that no child with medical needs, urgent or not, be left without services.

Response: The department agrees that children with medical needs whose families have no resources present a serious problem. However, the CSHCN program must operate within its appropriation and must have rules which enable it to do so with maximum flexibility. No changes were made to the section as a result of these comments.

Comment: Concerning §38.16(e)(2), one commenter supported the proposed section which will result in children on Medicaid being accorded a lower priority, but cautioned that there could be a problem for parents who lose Medicaid in the months with an extra pay period.

Response: The department acknowledges that application of this criterion under these circumstances merits further consideration in program policy. No changes were made as a result of this comment.

Comment: Concerning §38.16(e)(2), one commenter requested clarification as to whether a complete absence of funding resources will be a priority for determining urgent need, adding that even families with third-party resources such as Medicaid, CHIP, and private insurance often have needs.

Response: The criteria for determining "urgent need" are listed §38.16(e). No changes were made as a result of this comment.

The comments on the proposed rules received by the department during the comment period were submitted by Any Baby Can, Inc., Baylor University Medical Center at Dallas, Cameron County Health Department, Children with Special Health Care Needs Advisory Committee, Children's Hospital Association of Texas (CHAT), Committee on Children with Disabilities of the Texas Pediatric Society, Cystic Fibrosis Care Center at Baylor College of Medicine, Cystic Fibrosis Center at CHRISTUS Santa Rosa Health Care, Cystic Fibrosis Foundation, Disability Policy Consortium, El Paso First HMO, El Paso Independent School System, El Paso Rehabilitation Center, Harris County Hospital District, Rehab Medical Specialties, South Texas Radiology Group, P.A., Texas Association for Home Care, Texas Hospital Association, Texas Pediatric Society, Texas Tech Health Science Center at El Paso, United Cerebral Palsy, Parent Case Management at West Texas Rehabilitation Center, family members of children on the CSHCN Program or waiting list, clients of the CSHCN Program, and an independent advocate. The comments generally were in favor of the rules but some did not support specific aspects of the proposed language; the comments raised questions, offered comments for clarification purposes, and suggested clarifying language concerning certain provisions in the rules.

The amendments and new section are adopted under Health and Safety Code, §§35.003-35.006, 35.009, and §12.001, which provides the board with the authority to adopt rules for its procedure and for the performance of each duty proposed by law on the board, the department, or the commissioner of health.

§38.2.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Act--The Children with Special Health Care Needs Services Act, Health and Safety Code, Chapter 35.

(2) Advanced practice nurse--A registered nurse approved by the Texas Board of Nurse Examiners to practice as an advanced practice nurse, including but not limited to a nurse practitioner, nurse anesthetist, or clinical nurse specialist.

(3) Advisory committee--Those persons appointed by the Texas Board of Health to serve in an advisory capacity to the Children with Special Health Care Needs (CSHCN) Program staff.

(4) Applicant--A person making application for CSHCN program services, but who has not been determined eligible.

(5) Board--The Texas Board of Health.

(6) Bona fide resident--A person who:

(A) is physically present within the geographic boundaries of the state;

(B) has an intent to remain within the state;

(D) has not come to Texas from another country for the purpose of obtaining medical care, with the intent to return to the person's native country;

(E) does not claim residency in any other state or country; and

(i) is a minor child residing in Texas whose parent(s), managing conservator, guardian of the child's person, or caretaker (with whom the child consistently resides and plans to continue to reside) is a bona fide resident;

(ii) is a person residing in Texas who is the legally dependent spouse of a bona fide resident; or

(iii) is an adult residing in Texas, including an adult whose parent(s), managing conservator, guardian of the adult's person, or caretaker (with whom the adult consistently resides and plans to continue to reside) is a bona fide resident or who is his/her own guardian.

(7) Case management services--Case management services include, but are not limited to:

(A) planning, accessing, and coordinating needed health care and related services for children with special health care needs and their families. Case management services are performed in partnership with the child, the child's family, providers, and others involved in the care of the child and are performed as needed to help improve the well-being of the child and the child's family; and

(B) counseling for the child and the child's family about measures to prevent the transmission of AIDS or HIV and the availability in the geographic area of any appropriate health care services, such as mental health care, psychological health care, and social and support services.

(8) Child with special health care needs--A person who:

(A) is younger than 21 years of age and who has a chronic physical or developmental condition; or

(B) has cystic fibrosis, regardless of the person's age; and

(C) may have a behavioral or emotional condition that accompanies the person's physical or developmental condition. The term does not include a person who has behavioral or emotional condition without having an accompanying physical or developmental condition.

(9) CHIP--The Children's Health Insurance Program administered by the Texas Health and Human Services Commission under Title XXI of the Social Security Act.

(10) Chronic developmental condition--A disability manifested during the developmental period for a child with special health care needs which results in impaired intellectual functioning or deficiencies in essential skills, which is expected to continue for a period longer than one year, and which causes a person to need assistance in the major activities of daily living and/or in meeting personal care needs. For the purpose of this chapter, a chronic developmental condition must include physical manifestations and may not be solely a delay in intellectual, mental, behavioral and/or emotional development.

(11) Chronic physical condition--A disease or disabling condition of the body, of a bodily tissue or of an organ which will last or is expected to last for at least 12 months; that results, or without treatment, may result in limits to one or more major life activities; and that requires health and related services of a type or amount beyond those required by children generally. Such a condition may exist with accompanying developmental, mental, behavioral, or emotional conditions, but is not solely a delay in intellectual development or solely a mental, behavioral and/or emotional condition.

(12) Claim form--The CSHCN program-approved document for submitting the unpaid claim for processing and payment.

(13) Client--A person who has applied for program services and who meets all CSHCN program eligibility requirements and is determined to be eligible for program services.

(A) New client:

(i) a person who has applied to the program for the first time and who is determined to be eligible for program services; or

(ii) a person who has re-applied to the program (after a lapse in eligibility) and who is determined to be eligible for program services.

(B) Ongoing client--A client who currently is not on the program's waiting list.

(14) Commissioner--The Commissioner of Health.

(15) Co-insurance--A cost-sharing arrangement in which a covered person pays a specified percentage of the charge for a covered service. The covered person may be responsible for payment at the time the health care service is provided.

(16) Co-pay/Co-payment--A cost-sharing arrangement in which a client pays a specified charge for a specified service. The client is usually responsible for payment at the time the health care service is provided.

(17) CSHCN program--The services program for children with special health care needs described in §38.1 of this title (relating to Purpose and Common Name).

(18) Date of service (DOS)--The date a service is provided.

(19) Deductible--A cost-sharing arrangement in which a client is responsible for paying a specific amount annually for covered services before an insurance carrier or plan begins to pay for covered services.

(20) Dentist--An individual licensed by the State Board of Dental Examiners to practice dentistry in the State of Texas.

(21) Department--The Texas Department of Health.

(22) Diagnosis and evaluation services--The process of performing specialized examinations, tests, and/or procedures to determine whether a CSHCN program applicant for health care benefits has a chronic physical or developmental condition as determined by a physician or dentist participating in the CSHCN program and/or to help determine whether a waiting list client has an "urgent need for health care benefits", according to the criteria and protocol described in §38.16(e) of this title (relating to Procedures to Address CSHCN Program Budget Alignment).

(23) Eligibility date for the CSHCN program health care benefits--The effective date of eligibility for the CSHCN program health care benefits is 15 days prior to the date of receipt of the application, except in the following circumstances.

(A) The effective date of eligibility for newborns who are not born prematurely will be the date of birth. Newborn means a child 30 days old or younger.

(B) The effective date of eligibility following traumatic injury will be the day after the acute phase of treatment ends, but no earlier than 15 days prior to the date of receipt of the application.

(C) The effective date of eligibility for an applicant that is born prematurely will be the day after the applicant has been out of the hospital for 14 consecutive days, but no earlier than 15 days prior to the date of receipt of the application.

(D) The effective date of eligibility for applicants with spenddown is the day after the earliest DOS on which the cumulative bills are sufficient to meet the spenddown amount, but no earlier than 15 days prior to the date of receipt of the application. Only medical bills having a DOS within 12 months from the date of receipt of the application, or a DOS within 12 months after the financial eligibility denial date may be included to satisfy spenddown requirements. Medical bills for any member of the household for which the applicant, parent(s), guardian or managing conservator of the CSHCN applicant is responsible may be included. Medical bills used to meet spenddown cannot be paid by the CSHCN program.

(E) Excluding applications for clients who are known to be ineligible for Medicaid and/or the CHIP due to age, citizenship status or insurance coverage, all applications must include a determination of eligibility from Medicaid and/or the CHIP. If the CSHCN application is received without a Medicaid determination, a CHIP determination, or other data/documents needed to process the application, it will be considered incomplete. The applicant will be notified that the application is incomplete and given 60 days to submit the Medicaid determination, CHIP denial or enrollment, or other missing data/documents to CSHCN. If the application is made complete within the 60-day time limit, the client's eligibility effective date will be established as 15 days prior to the date the CSHCN application was first received. If the application is made complete more than 60 days after initial receipt, the eligibility effective date will be established as 15 days prior to the date the application was made complete.

(24) Emergency--A medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent person with average knowledge of health and medicine could reasonably expect that the absence of immediate medical care could result in:

(A) placing the person's health in serious jeopardy;

(B) serious impairment to bodily functions; or

(25) Emotional or behavioral condition--Behavior which varies significantly from normal, that is chronic and does not quickly disappear, and that is unacceptable because of social or cultural expectations. Emotional or behavioral responses which are so different from those of the generally accepted, age-appropriate norms of people with the same ethnic or cultural background as to result in significant impairment in social relationships, self-care, educational progress, or classroom behavior. Examples include but are not limited to the following:

(A) an inability to build or maintain satisfactory age-appropriate interpersonal relationships with peers or adults;

(B) dangerously aggressive, self-destructive, severely withdrawn, or noncommunicative behaviors;

(D) evidence of excessive anxiety or fears.

(26) Facility--A hospital, psychiatric hospital, rehabilitation hospital or center, ambulatory surgical center, renal dialysis center, specialty center and/or outpatient clinic.

(27) Family--For the purpose of this chapter, the family includes the following persons who live in the same residence:

(A) the applicant;

(B) those related to the applicant as a parent, step-parent or spouse who have a legal responsibility to support the applicant or guardians/managing conservators who have a duty to provide food, shelter, education, and medical care for the applicant;

(D) children of a parent, step-parent or spouse.

(28) Family support services--Disability-related support, resources, or other assistance provided to the family of a child with special health care needs. The term may include services described by Part A of the Individuals with Disabilities Education Act (20 U.S.C. Section 1400 et seq .), as amended, and permanency planning, as that term is defined by Government Code, §531.151.

(29) Financial independence--A person who currently files his or her own personal U.S. income tax return and is not claimed as a dependent by any other person on his or her U.S. income tax return.

(30) Health care benefits--Program benefits consisting of diagnosis and evaluation services, rehabilitation services, medical home care management services, family support services, transportation related services, and insurance premium payment services.

(31) Health insurance/health benefits plan--A policy or plan, either individual, group, or government-sponsored, that an individual purchases or in which an individual participates that provides benefits when medical and/or dental costs are or would be incurred. Sources of health insurance include, but are not limited to, health insurance policies, health maintenance organizations, preferred provider organizations, employee health welfare plans, union health welfare plans, medical expense reimbursement plans, the Civilian Health and Medical Program of the Uniformed Services/Veterans Administration (CHAMPUS, CHAMPVA) or their successor plans, Medicaid, the Children's Health Insurance Program (CHIP), and Medicare. Benefits may be in any form, including, but not limited to, reimbursement based upon cost, cash payment based upon a schedule, or access without charge or at minimal charge to providers of medical and/or dental care. Benefits from a municipal or county hospital, joint municipal-county hospital, county hospital authority, hospital district, county indigent health care programs, or the facilities of a medical school shall not constitute health insurance for purposes of this chapter.

(32) Household--The living unit in which the applicant resides and which also may include one or more of the following:

(A) mother;

(B) father;

(D) spouse;

(E) foster parent(s), managing conservator, or guardian;

(F) grandparent(s);

(G) sibling(s);

(H) stepbrother(s); or

(I) stepsister(s).

(33) Medical home--A source of ongoing routine health care in the community in which providers and families work as partners to meet the needs of children and families. The medical home assists in early identification of special health care needs; provides ongoing primary care; and coordinates with a broad range of other specialty, ancillary, and related services.

(34) Natural home--The home in which the eligible person lives that is either the residence of his/her parent(s), foster parent(s) or guardian(s), or extended family member(s), or the home in the community where the person has chosen to live, alone or with other persons. A natural home may utilize natural support systems such as family, friends, co-workers, and services available to the general population as they are available.

(35) Newborn screening--The process required by law through which newborn children are screened for congenital anomalies, including but not limited to hearing impairment, congenital adrenal hyperplasia, congenital hypothyroidism, galactosemia, phenylketonuria, and hemoglobinopathies, such as sickle cell disease.

(36) Other benefit--A benefit, other than a benefit provided under this chapter, to which a person is entitled for payment of the costs of services provided under the CSHCN program including benefits available from:

(A) an insurance policy, group health plan, health maintenance organization, or prepaid medical or dental care plan;

(B) Title XVIII, Title XIX, or Title XXI of the Social Security Act (42 U.S.C. Sections 1395 et seq. , 1396 et seq. , and 1397aa et seq. ), as amended;

(D) the Civilian Health and Medical Program of the Uniformed Services (CHAMPUS);

(E) workers' compensation or any other compulsory employers' insurance program;

(F) a public program created by federal or state law or under the authority of a municipality or other political subdivision of the state, excluding benefits created by the establishment of a municipal or county hospital, a joint municipal-county hospital, a county hospital authority, a hospital district, or the facilities of a publicly supported medical school; or

(G) a cause of action for the cost of care, including medical care, dental care, facility care, and medical supplies, required for a person applying for or receiving services from the department, or a settlement or judgment based on the cause of action, if the expenses are related to the need for services provided under this chapter.

(37) Permanency planning--A planning process undertaken for children with chronic illness or developmental disabilities who reside in institutions or are at risk of institutional placement, with the explicit goal of securing a permanent living arrangement that enhances the child's growth and development, which is based on the philosophy that all children belong in families and need permanent family relationships. Permanency planning is directed toward securing: a consistent, nurturing environment; an enduring, positive adult relationship(s); and a specific person who will be an advocate for the child throughout the child's life. Permanency planning provides supports to enable families to nurture their children; to reunite with their children when they have been placed outside the home; and to place their children in family environments.

(38) Person--An individual, corporation, government or governmental subdivision or agency, business trust, partnership, association, or any other legal entity.

(39) Physician--A person licensed by the Texas State Board of Medical Examiners to practice medicine in this state.

(40) Prematurity/born prematurely--A child born at less than 36 weeks gestational age and hospitalized since birth.

(41) Program--The services program for Children with Special Health Care Needs (CSHCN).

(42) Provider--A person and/or facility as defined in §38.6 of this title (relating to Providers) that delivers services purchased by the CSHCN program for the purpose of implementing the Act.

(43) Rehabilitation services--The process of the physical restoration, improvement, or maintenance of a body function destroyed or impaired by congenital defect, disease, or injury which includes the following acute and chronic/rehabilitative services:

(A) facility care, medical and dental care, and occupational, speech, and physical therapies;

(B) the provision of medications, braces, orthotic and prosthetic devices, durable medical equipment, and other medical supplies; and

(44) Respite care--A service provided on a short-term basis for the purpose of relief to the primary care giver in providing care to individuals with disabilities. Respite services can be provided in either in-home or out-of-home settings on a planned basis or in response to a crisis in the family where a temporary care giver is needed.

(45) Routine child care--Child care for a child who needs supervision while the parent/guardian is at work, in school, or in job training.

(46) Services--The care, activities, and supplies provided under the Act, including but not limited to both acute and chronic/rehabilitative medical care, dental care, facility care, medications, durable medical equipment, medical supplies, occupational, physical, and speech therapies, family support services, case management services, and other care specified by program rules.

(47) Social service organization--For purposes of this chapter, a for-profit or nonprofit corporation or other entity, not including individual persons, that provides funds for travel, meal, lodging, and family supports expenses in advance to enable CSHCN clients to obtain program services.

(48) Specialty center--A facility and staff that meets the CSHCN program minimum standards established in this chapter and are designated for CSHCN program use as part of the comprehensive services for a specific medical condition.

(49) Spenddown--Financial eligibility achieved when household income exceeds 200% of the federal poverty level, if the applicant's family can document its responsibility for household medical bills that are equal to or greater than the amount in excess of the 200% level.

(50) State--The State of Texas.

(51) Supplemental Security Income Program (SSI)--Title XVI of the Social Security Act which provides for payments to individuals (including children under age 18) who are disabled and have limited income and resources.

(52) Support--The contribution of money or services necessary for a person's maintenance, including, but not limited to, food, clothing, shelter, transportation, and health care.

(53) Treatment plan--The plan of care for the client (time and treatment specific) as certified by and implemented under the supervision of a physician or other practitioner participating in the CSHCN program.

(54) United States Public Health Service (USPHS) price--The average manufacturer price for a drug in the preceding calendar quarter under Title XIX of the Social Security Act, reduced by the rebate percentage, as authorized by the Veterans Health Care Act of 1992 (P.L. 102-585, November 4, 1992).

(55) Urgent need for health care benefits--A client need that fits the criteria and protocol described in §38.16(e) of this title.

§38.3.Eligibility for CSHCN Program Services.

(a) Eligibility for health care benefits. In order to be determined eligible for CSHCN program health care benefits, applicants must meet the medical, financial, and other criteria in this section.

(1) Medical criteria. A physician or dentist must certify annually that the person meets the definition of "child with special health care needs" as defined by §38.2(8) of this title (relating to Definitions). The CSHCN program must receive a medical diagnosis code from the International Classification of Diseases, Ninth Revision, Clinical Modification (ICD-9-CM), or its successor, on each condition for statistical and referral purposes. If a physician or dentist requests coverage of diagnosis and evaluation services to determine if the child/applicant meets the definition of a "child with special health care needs", and the applicant meets all other eligibility criteria for health care benefits, then the applicant may be given up to 60 days of program coverage for diagnosis and evaluation services only.

(2) Financial criteria. Financial criteria are determined annually and are based upon the same determinations of income, family size, and disregards as the CHIP. The CHIP net income is the family's gross income minus disregards. For applicants who are not eligible for CHIP, premiums paid for health insurance may be included as an additional disregard. All families must verify their income and disregards.

(A) The income level for eligibility is 200% of the federal poverty level. If the family income exceeds this level, and the applicant's family can document its responsibility for household medical bills incurred within 12 months of the application date or within 12 months after the financial eligibility denial date that are equal to or greater than the amount in excess of the 200% level, the applicant may be determined financially eligible for a period of 12 months beginning on the eligibility date.

(B) Applications to Medicaid and the Supplemental Security Income (SSI) programs.

(i) If actual or projected CSHCN program expenditures for a client exceed $2,000 per year, the client whose age, medical condition, or citizenship status do not exceed Medicaid eligibility criteria shall be required to apply for Medicaid, specifically including the Medically Needy program and, if eligible, to participate in those programs in order to remain eligible for further CSHCN program benefits. Within 60 days of the date of the notification letter, the client must submit to the CSHCN program documentation of an eligibility determination from Medicaid. During this 60-day period, CSHCN program coverage will continue. If the client does not provide documentation of an eligibility determination from Medicaid within the 60-day time limit, CSHCN program coverage shall be terminated and may not be reinstated unless an eligibility determination is received. The program may grant the client a 30-day extension to obtain the determination.

(ii) The CSHCN program also may require a client for whom actual or projected expenditures exceed $2,000 per year to apply for the SSI program, and, if eligible, to participate in that program in order to remain eligible for further CSHCN program benefits. Within 60 days of the date of the notification letter, the client must submit to the CSHCN program verification of a timely and complete application to SSI. During this 60-day period, CSHCN program coverage will continue. If the client does not provide this verification within the 60-day time limit, CSHCN program coverage may be terminated. With verification of an application to SSI, the program may continue coverage, pending receipt of an SSI eligibility determination.

(3) Health insurance.

(A) All health insurance coverage insuring the applicant and/or family must be listed on the application. If insurance coverage was effective prior to CSHCN program eligibility, such coverage must be kept in force. Noncompliance with this requirement may result in the termination of CSHCN program benefits. If insurance cannot be maintained, the applicant or parent/guardian/managing conservator must, upon request, provide to the CSHCN program proof of:

(i) cancellation from the insurer or plan sponsor;

(ii) discontinuation of the insurance plan by the insurer or plan sponsor;

(iii) exhaustion of the right to continue group insurance coverage as provided under federal and/or state law; or

(iv) financial inability to continue paying the cost of any health insurance except CHIP.

(B) If the applicant/client does not have health insurance at the time of application or eligibility renewal, but coverage may be available, including coverage under CHIP, the applicant/client that is not ineligible for such coverage by reason of age, citizenship, or residency status must apply for coverage and receive an eligibility determination within 60 days of the date of notification. With verification of an application to an available health insurance plan, the program may extend this deadline and/or continue CSHCN program coverage, pending receipt of an insurance eligibility determination. If the applicant/client is eligible for CHIP, the applicant/client must be enrolled in CHIP. Such insurance must be kept in force as though it were effective prior to CSHCN program eligibility.

(C) The CSHCN program will assist in determining possible eligibility for insurance and may provide CSHCN program benefits during insurance application, enrollment, and/or limited or excluded coverage periods. A family support services plan for an applicant may not be implemented until the determination of program eligibility, including eligibility for available insurance plans is complete.

(D) Before canceling, terminating, or discontinuing existing health insurance, or electing not to enroll a client in available health insurance, including canceling, terminating, discontinuing, or not enrolling in CHIP, the parent/guardian/managing conservator must notify the CSHCN program 30 days prior to cancellation, termination, discontinuance, or end of the enrollment period. When the CSHCN program provides assistance in keeping or acquiring health insurance, the parent/guardian/managing conservator must maintain or enroll in the health insurance.

(4) Age. The applicant, other than one with cystic fibrosis, must be under the age of 21.

(5) Residency. The applicant must be a bona fide resident of the State of Texas.

(6) Application.

(A) Applications are available to anyone seeking assistance from the CSHCN program. To be considered by the CSHCN program, the application must be made on forms currently in use.

(B) A person is considered to be an applicant from the time that the CSHCN program receives an application. The CSHCN program will respond in writing regarding eligibility status within 30 working days after the completed application is received. Applications will be considered:

(i) denied, if eligibility requirements are not met;

(ii) incomplete, if required information that includes a CHIP, Medicaid, or SSI determination or any other data/document needed to process the application is not provided, or if an outdated form is submitted; or

(iii) approved, if all criteria are met.

(C) The denial of any application submitted to the CSHCN program shall be in writing and shall include the reason(s) for such denial. The applicant has the right of administrative review and a fair hearing as set out in §38.13 of this title (relating to Right of Appeal).

(D) Any person has the right to reapply for CSHCN program coverage at any time or whenever the person's situation or condition changes.

(7) Verification of information.

(A) The CSHCN program shall make the final determination on a person's eligibility using the information provided with the application. The CSHCN program may request verification of any information provided by the applicant to establish eligibility.

(B) The CSHCN program shall verify selected information on the application. Documentation of date of birth, residency, income, and income disregards shall be required. The CSHCN program shall notify the applicant/family in writing when specific documentation is required. It is the applicant's/family's responsibility to provide the required information.

(C) Those applicants/clients financially eligible for CHIP, Medicaid, or other programs with similar income guidelines who also meet the age and residency requirements of the CSHCN program will be considered financially eligible. The applicant/client/family must notify the CSHCN program, if the applicant/client is no longer eligible for such programs.

(b) Eligibility for case management services. The CSHCN program may provide and/or reimburse for case management services to persons in need of such services who are bona fide residents and who are determined not to have another primary provider and/or funding source for such services. The program's case management services are focused on individuals (and their families) who are eligible, seeking eligibility, or potentially seeking eligibility for the program's health care benefits (includes clients who are on the waiting list for health care benefits). However, the program may offer and provide case management services to individuals (and their families) who are neither eligible nor seeking eligibility for the program's health care benefits.

§38.4.Covered Services.

(a) Introduction. The CSHCN program provides no direct medical services, but reimburses for services rendered by CSHCN program participating providers and/or contractors. Clients must receive services as close to their home communities as possible unless CSHCN program contracts or policies require treatment at specific facilities or specialty centers and/or the clients' conditions require specific specialty care.

(b) Types of service.

(1) Early identification. The CSHCN program may conduct outreach activities to identify children for program enrollment, increase their access to care, and help them use services appropriately. Outreach services may include, but are not limited to:

(A) CSHCN program promotion to the general public, or targeted to potential clients and providers;

(B) development and distribution of educational materials to assist applicants and clients in the access and use of program services;

(C) development and distribution of population-based educational materials concerning children with special health care needs;

(D) integration with programs which screen for or provide treatment of newborn congenital anomalies and/or other specialty care; and

(E) links with community, regional, and/or school-based clinics to identify, assess needs, and provide appropriate resources for children with special health care needs.

(2) Diagnosis and evaluation services. May be covered for the purpose of determining whether a CSHCN program applicant for health care benefits meets the CSHCN program definition of a child with special health care needs. Diagnosis and evaluation services must be prior authorized and coverage is limited in duration. If a physician or dentist requests coverage of diagnosis and evaluation services to determine if the child/applicant meets the definition of a "child with special health care needs", and the applicant meets all other eligibility criteria, then the applicant may be given up to 60 days of program coverage for diagnosis and evaluation services only. The program medical director or other designated medical staff may prior authorize limited coverage of diagnosis and evaluation services for waiting list clients if needed to help determine "urgent need for health care benefits" as described in §38.16(e) of this title (relating to Procedures to Address CSHCN Program Budget Alignment). Only CSHCN program participating providers may be reimbursed for diagnosis and evaluation services.

(3) Rehabilitation services. Rehabilitation services means a process of physical restoration, improvement, or maintenance of a body function destroyed or impaired by congenital defect, disease, or injury which includes the following acute and chronic/rehabilitative services: facility care, medical and dental care, occupational, speech, and physical therapies, the provision of medications, braces, orthotic and prosthetic devices, durable medical equipment, other medical supplies, and other services specified in this chapter. To be eligible for CSHCN program reimbursement, treatment must be for a client with a chronic physical or developmental condition as specified in §38.3(a)(1) of this title (relating to Eligibility for CSHCN Program Services), and must have been prescribed by a provider in compliance with all applicable laws and regulations of the State of Texas. Services may be limited, and the availability of certain services described in the following subparagraphs is contingent upon implementation of automation procedures and systems.

(A) Medical assessment and treatment. Medical assessment and treatment services, including medically necessary laboratory and radiology studies, must be provided by physicians and other practitioners licensed by the State of Texas, enrolled as participating providers in the CSHCN program, and within the scope of their respective licenses or registrations.

(B) Outpatient mental health services. Outpatient mental health services are limited to no more than 30 encounters by all professionals licensed to provide mental/behavioral health services, including psychiatrists, psychologists, licensed master social worker-advanced clinical practitioners, licensed marriage and family therapists, and licensed professional counselors, per eligible client per calendar year. Coverage includes, but is not limited to psychological or neuropsychological testing, psychotherapy, psychoanalysis, counseling, and narcosynthesis.

(C) Preventive and therapeutic dental services (including oral/maxillofacial surgery). Preventive and therapeutic dental services must be provided by licensed dentists enrolled to participate in the CSHCN program. Coverage for therapeutic dental services, including prosthetics and oral/maxillofacial surgery, follows the Texas Medicaid program guidelines. Orthodontic care may be provided only for CSHCN eligible clients with diagnoses of cleft/craniofacial abnormalities and/or late effects of fractures of the skull and face bones.

(D) Podiatric services. Podiatric services must be provided by licensed podiatrists enrolled to participate in the CSHCN program. Coverage is limited to the medically necessary treatment of foot and ankle conditions and follows the Texas Medicaid program guidelines. Supportive devices, such as molds, inlays, shoes, or supports, must comply with coverage limitations for foot orthoses.

(E) Treatment in CSHCN program participating facilities. Non-emergency hospital care must be provided in facilities which are enrolled as CSHCN program participating providers. The length of stay is limited according to diagnosis, procedures required, and the client's condition.

(i) Inpatient hospital care and inpatient psychiatric care.

(I) Inpatient hospital care. Coverage is limited to 60 days per calendar year for medically necessary care, and excludes the following:

(-a-) maternity care, newborn care, infertility treatment, or other reproductive services unless directly related to a covered chronic physical or developmental condition;

(-b-) personal comfort items, such as television or newspaper delivery; and

(-c-) private duty nursing/attendant care.

(II) Inpatient psychiatric care. Coverage is limited to inpatient assessment and crisis stabilization and is to be followed by referral to the Texas Department of Mental Health and Mental Retardation programs or other appropriate mental health program. Admission must be prior authorized and is limited to five days. Services include those medically necessary and furnished by a Medicaid psychiatric hospital/facility under the direction of a psychiatrist.

(ii) Inpatient rehabilitation care. Medically necessary inpatient rehabilitation care is limited to an initial admission not to exceed 30 days, based on the functional status and potential of the client as certified by a physician participating in the CSHCN program. Services beyond the initial 30 days may be approved by the CSHCN program based upon the client's medical condition, plan of treatment, and progress. Payment for inpatient rehabilitation care is limited to 90 days during a calendar year.

(iii) Ambulatory surgical care. Ambulatory surgical care is limited to the medically necessary treatment of a client and may be performed only in CSHCN program approved ambulatory surgical centers as defined in §38.7 of this title (relating to Ambulatory Surgical Care Facilities).

(iv) Emergency care. Care including, but not limited to hospital emergency departments, ancillary, and physician services, is limited to medical conditions manifested by acute symptoms of sufficient severity (including severe pain) such that a prudent person with average knowledge of health and medicine could reasonably expect that the absence of immediate medical care could result in placing the client's health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. If a client is admitted to a non-participating CSHCN program hospital provider following care in that provider's emergency room, and the admitting facility declines to enroll or does not qualify as a CSHCN program provider, the client must be discharged or transferred to a participating CSHCN program provider as soon as the client's medical condition permits. All providers must enroll in order to receive reimbursement.

(v) Care for renal disease. Renal dialysis is limited to the treatment of acute renal disease or chronic (end stage) renal disease through a renal dialysis facility and includes, but is not limited to dialysis, laboratory services, drugs and supplies, declotting shunts, on-site physician services, and appropriate access surgery. Renal transplants may be covered in approved renal transplant centers if the projected cost of the transplant and follow-up care is less than that of continuing renal dialysis. Renal transplants must be prior authorized.

(F) Orthotic and prosthetic devices. Orthotic and prosthetic devices must be prescribed by a practitioner licensed to do so and supplied by an orthotist or prosthetist licensed by the State of Texas.

(G) Medications. Outpatient medications available through pharmacy providers, including over-the-counter products, must be prescribed by practitioners licensed to do so. Payment shall be made only after delivery of the medications.

(H) Nutrition services and nutritional products, excluding hyperalimentation/total parenteral nutrition (TPN).

(i) Nutrition services. Nutrition services must be prescribed by a practitioner licensed to do so.

(ii) Nutritional products. Nutritional products, including over-the-counter products, are limited to those covered by the CSHCN program and prescribed by a practitioner licensed to do so, for the treatment of an identified metabolic disorder or other medical condition and serving as a medically necessary therapeutic agent for life and health, or when part or all nutritional intake is through a tube.

(I) Hyperalimentation/Total Parenteral Nutrition (TPN). A package of medically necessary services provided on a daily basis when oral intake cannot maintain adequate nutrition. TPN services include, but are not limited to solutions and additives, supplies and equipment, customary and routine laboratory work, enteral supplies, and nursing visits. Covered services must be reasonable, medically necessary, appropriate and prescribed by a practitioner licensed to do so.

(J) Durable medical equipment. All equipment must be prescribed by a practitioner licensed to do so. Some equipment may be supplied on a contract basis, and therefore, shall be ordered from a specific supplier.

(K) Medical supplies. Supplies must be medically necessary for the treatment of an eligible client.

(L) Professional vision services. Vision services medically necessary for the treatment of a client include, but are not limited to:

(i) medically necessary eye examinations with refraction for diagnoses of refractive error, aphakia, diseases of the eye, or eye surgery;

(ii) one eye examination with refraction for the purpose of obtaining eyewear during the state fiscal year; and

(iii) one pair of non-prosthetic eye wear per year prescribed by a practitioner licensed to do so.

(M) Speech-language pathology/audiology. Speech-language pathology and audiology services medically necessary for the treatment of a client must be prescribed by a practitioner licensed to do so and provided by a speech-language pathologist or audiologist licensed by the State of Texas. CSHCN program coverage of speech-language pathology and audiology services may be limited to certain conditions, by type of service, by age, by the client's medical status, and whether the client is eligible for services for which a school district is legally responsible.

(N) Audiological testing, hearing exams, and amplification devices. Services for clients under 21 years of age are coordinated through the Program for Amplification for Children of Texas (PACT). For clients 21 years of age and older and those ineligible for the PACT, covered services are the same as those available through the PACT.

(O) Occupational and physical therapy. Occupational and physical therapy medically necessary for the treatment of a client must be prescribed by a practitioner licensed to do so and provided by a therapist licensed by the State of Texas. CSHCN program coverage of physical and occupational therapy may be limited to certain conditions, by type of service, by age, by the client's medical status, and whether the child is eligible for services for which a school district is legally responsible.

(P) Certified respiratory care practitioner services. Respiratory therapy medically necessary for the treatment of a client must be prescribed by a practitioner licensed to do so and provided by a certified respiratory care practitioner. CSHCN program coverage of respiratory therapy may be limited to certain conditions, by type of service, by age, by the client's medical status, and whether the child is eligible for services for which a school district is legally responsible.

(Q) Home health nursing services. Home health nursing services must be medically necessary, be prescribed by a physician, and be provided only by a licensed and certified home and community support services agency participating in the CSHCN program. Home health nursing services are limited to 200 hours per client per year. Up to 200 additional hours of service per client per year may be approved with documented justification of need and cost effectiveness.

(R) Hospice care. Hospice care includes palliative care for clients with a presumed life expectancy of six months or less during the last weeks and months before death. Services apply to care for the hospice terminal diagnosis condition or illnesses. Treatment for conditions unrelated to the terminal condition or illnesses is unaffected. Hospice care must be prescribed by a practitioner licensed to do so who also is enrolled as a CSHCN provider.

(4) Care management.

(A) Medical home. Each CSHCN program client should receive care in the context of a medical home.

(i) Comprehensive coordinated health care of infants, children, and adolescents should encompass the following services:

(I) provision of preventive care, including but not limited to, immunizations; growth and development assessments; appropriate screening health care supervision; client and parental counseling about health care supervision; and client and parental counseling about health and psychological issues;

(II) assurance of ambulatory and inpatient care for acute illness, 24 hours a day, seven days a week (including after hours and weekends);

(III) provision of care over an extended period of time to enhance continuity;

(IV) identification of the need for sub-specialty consultation and referrals, provision of medical information about the client to the consultant, evaluation of the consultant's recommendations, implementation of recommendations that are indicated and appropriate, and interpretation of the consultant's recommendations for the family;

(V) interaction with school and community agencies to assure that the special health needs of the client are addressed; and

(VI) maintenance of a central record and data base containing all pertinent medical information about the client, including information about hospitalizations.

(ii) The CSHCN program may require periodic reports from the medical home.

(B) Case management. Case management services may be made available to program clients through public health regional offices or other resources to assist clients and their families in obtaining adequate and appropriate services to meet the client's health and related services needs. The program will make available case management as needed/ desired to all clients who are eligible for health care benefits (includes clients who are on the waiting list for health care benefits). The program also may make available case management services to clients who are not eligible for the program's health care benefits.

(5) Family support services. Family support services include disability-related support, resources, or other assistance and may be provided to the family of a client with special health care needs.

(A) Eligibility. A client is eligible to receive family support services if:

(i) the client is fully eligible for the CSHCN program health care benefits;

(ii) the client is not receiving services from a Medicaid home and community-based waiver program, and the requested service does not duplicate services received from other family support programs, such as the In-Home and Family Support program at the Texas Department of Human Services or the Texas Department of Mental Health and Mental Retardation; and

(iii) the client's family collaborates with the assigned case manager to identify and pursue other sources of support and to develop a family support services plan.

(B) Processing and evaluation of requests.

(i) Families indicate their need for family support services in writing at the time of their application or renewal for the CSHCN program, or at any time during their eligibility period for the CSHCN program.

(ii) In each public health region or other designated subdivision of the state, requests for family support services are processed in chronological order by the date of the request.

(iii) All requests for family support services must be prior authorized (approved by the CSHCN program prior to delivery).

(iv) While there is a waiting list for health care benefits, limitations in reimbursement and/or prior authorization may be instituted as provided in §38.16 of this title.

(v) Some services or items may require a written statement from a physician, physical therapist, occupational therapist, and/or other healthcare professional to establish the disability-related nature of the request.

(vi) Some services or items may require written bids.

(vii) Persons requesting assistance are responsible for collaborating with their case managers as necessary so that an accurate determination can be made in a timely manner.

(viii) Families shall be notified in writing of the outcome of their requests.

(ix) Families have the right to appeal a decision as described in §38.13 of this title (relating to Right of Appeal).

(i) In order to obtain prior authorization for family support services, the case manager and the client/family must develop a written family support services plan.

(ii) The CSHCN program may establish annual cost allowances based upon the client's/family's level of assessed need for family support services, not to exceed:

(I) one-time assistance of up to $3,600 per eligible client for minor home remodeling; and

(II) assistance of up to $3,600 per year per eligible client to purchase other allowable services. This limit may increase to no more than $7,200 for the purchase of vehicle lifts and modifications;

(iii) Service plan cost allowances may be prorated for plans that cover less than one year.

(iv) Disbursement of assistance:

(I) may be in a lump sum or on a periodic basis;

(II) may be made to the family or to the vendor; and

(III) may be reduced by the amount of a cost-sharing requirement, if applicable.

(v) Reimbursement rates for providers are established by the client/family and the selected provider in collaboration with the case manager.

(vi) The annual service plan may be amended at any time, but will be reevaluated by the client/family and case manager at least annually to coincide with the client's reapplication for the CSHCN program.

(D) Allowable services.

(i) Family support services for CSHCN clients and their families include those allowable services and items that:

(I) are above and beyond the scope of usual needs (i.e., basic clothing, food, shelter, medical care, and education);

(II) are necessitated by the client's medical condition or disability; and

(III) directly support the client's living in his/her natural home and participating in family life and community activities.

(ii) Family support services may not be used to supplant services available through other public or private programs, but may be used to supplement services provided by other programs.

(iii) Allowable services include:

(I) respite care;

(II) specialized child care costs for a client in excess of the prevailing rate for routine child care, including specialized training for the child care provider;

(III) counseling or training programs or services that assist the client/family, including parent or family stipends to attend education or training conferences;

(IV) minor home remodeling, limited to the purchase and installation of ramps, widening of doorways, the modification of bathroom facilities, kitchen modifications, and other modifications to increase accessibility and safety;

(V) vehicle lifts and modifications consistent with those available through the Texas Rehabilitation Commission, limited to lifts, wheelchair tie-downs, occupant restraints, accessories/modifications such as raising roofs or doors if necessary for lift installation or usage, hand controls, and repairs of covered modifications not related to inappropriate handling or misuse of equipment and not covered by other resources;

(VI) specialized equipment, including porch/stair lifts, air purification systems or air conditioners, positioning equipment, bath aids, supplies prescribed by licensed practitioners that are not covered through other systems, and other non-medical disability-related equipment that assists with family activities, promotes the client's self-reliance, or otherwise supports the family;

(VII) other disability-related services that support permanency planning, independence, and/or participation in family life and integrated/inclusive community activities.

(E) Unallowable services. Family support funds may not be used to provide those services that do not relate to the client's disability and do not directly support the client's living in his/her natural home and participating in family life and integrated/inclusive community activities. Examples of unallowable services include, but are not limited to:

(i) items for which a less expensive alternative of comparable quality is available;

(ii) purchase or lease of vehicles, or vehicle maintenance and repair;

(iii) home mortgage or rent expenses, or basic home maintenance and repair;

(iv) income taxes;

(v) medical services;

(vi) services in segregated settings other than respite facilities or camps;

(vii) insurance premiums;

(viii) death benefits, burial policies, and funeral expenses;

(ix) costs for allowable services incurred before the written service plan is approved;

(x) non-medical foods, routine shelter, routine utilities, routine home repairs, routine home appliances, routine furnishings, fences, and yard work;

(xi) medical benefit items or services paid for or reimbursed by private insurance, Medicaid, Medicare, CHIP, the CSHCN program or other health insurance programs for which the client is eligible;

(xii) services, equipment, or supplies that have been denied by Medicaid, CHIP, or the CSHCN program because a claim was received after the filing deadline, insufficient information was submitted, or because an item was considered inappropriate or experimental;

(xiii) over-the-counter or prescription medications;

(xiv) architectural modifications to a public facility;

(xv) school tuition or fees, or equipment/items/services that should be provided through the public school system;

(xvi) items that could endanger the health and safety of the client;

(xvii) routine child care;

(xviii) computers and software, unless for use as an assistive technology device or necessary to perform a critical or essential function such as environmental control, or written or oral communication, which the client is unable to perform without the computer;

(xix) services provided by an individual under the age of 18 years or by the client's parent(s)/guardian(s) or other member of the client's household;

(xx) services exclusively to support the care of siblings or other members of the client's household, but which are not necessary to meet the medical needs of the client;

(F) Reduction/termination of services. Reasons for terminating or reducing family support services may include, but are not limited to:

(i) the client no longer meets the eligibility criteria for the CSHCN program;

(ii) services available through the program are discontinued due to budget restrictions;

(iii) While there is a waiting list for health care benefits, limitations in reimbursement and/or prior authorization may be instituted as provided in §38.16 of this title;

(iv) the client's family indicates that the need for family support services no longer exists;

(v) the client moves out of Texas;

(vi) the client is placed in a nursing facility or other institutional setting for an indefinite period of time;

(vii) the client dies;

(viii) the client's designated case manager is unable to locate the client/family; or

(ix) the family knowingly does not comply with the written family support services plan, in which case the family may also be liable for restitution.

(6) Other types of services. The following services also are available through the CSHCN program.

(A) Ambulance services. Emergency ground, non-emergency ground and air ambulance services are covered for the medically necessary transportation of a client. Non-emergency ambulance transport is covered if the client cannot be transported by any other means without endangering the health or safety of the client, and when there is a scheduled medical appointment for medically necessary care at the nearest appropriate facility. Transportation by air ambulance is limited to instances when the client's pickup point is inaccessible by land, or when great distance interferes with immediate admission to the nearest appropriate medical treatment facility. Transports to out-of-locality providers are covered if a local facility is not adequately equipped to treat the client. Out-of-locality refers to one-way transfers 50 miles or more from point of pickup to point of destination.

(B) Transportation. The CSHCN program may provide transportation for a client and, if needed, a responsible adult, to the nearest medically appropriate facility. The lowest-cost appropriate conveyance should be used. The CSHCN program shall not assist if transportation is the responsibility of the client's school district or can be obtained through Medicaid.

(C) Meals and lodging. The CSHCN program may provide meals and lodging to enable a parent, guardian, or their designee to obtain inpatient or outpatient care for a client at a facility located away from their home. The reason for the inpatient or outpatient visit must be directly related to medically necessary treatment for the client.

(D) Transportation of deceased. The CSHCN program may provide the following services:

(i) transportation cost for the remains of a client who expires in a CSHCN participating facility while receiving CSHCN program services, if the client was not in the family's city of residence in Texas, and the transportation cost of a parent or other person accompanying the remains;

(ii) embalming of the deceased, if required by law for transportation;

(iii) a coffin meeting minimum requirements, if required by law for transportation; and

(iv) any other necessary expenses directly related to the care and return of the client's remains.

(E) Payment of insurance premiums, coinsurance, co-payments, and/or deductibles. The CSHCN program may pay public or private health insurance premiums to maintain or acquire a health benefit plan or other third party coverage for the client, if the parent/foster parent/guardian/managing conservator is financially unable to do so, and if paying for such health insurance can reasonably be expected to be cost effective for the CSHCN program. The CSHCN program may pay for coinsurance and deductible amounts when the total amount paid to the provider does not exceed the maximum allowed for the covered service. The CSHCN program may reimburse clients for co-payments paid for covered services. The CSHCN program may not pay premiums, deductibles, coinsurance or co-payments for clients enrolled in CHIP.

(c) Services not covered. Services which are not covered by the CSHCN program even though they may be medically necessary for and provided to a client include, but are not limited to:

(1) treatments which are considered experimental or investigational;

(2) chiropractic services;

(3) care for premature infants;

(4) care for alcohol or substance abuse;

(5) pregnancy prevention, except when medically necessary for the specific treatment of a covered condition;

(6) maternity care; and

(7) infertility treatment or other reproductive services, unless directly related to a covered chronic physical or developmental condition.

(d) Service authorization. The CSHCN program may require authorization (including prior authorization) of reimbursement for selected services for clients.

(1) Provider's responsibility. A CSHCN provider must request services in specific terms on department-prepared forms so that an authorization may be issued and sufficient monies encumbered to cover the cost of the service. If a service is authorized, payment may be made to the provider as long as the service is not covered by a third party resource, and all billing requirements are met. Program authorization should not be considered an absolute guarantee of payment. Once a service is delivered and if the service requires authorization for payment, the authorization request for that service must be submitted within 90 days of the date of service.

(2) Required prior authorization for selected services. At the CSHCN program's option, selected services may require authorization prior to the delivery of services in order for payment to be made. Authorization requests must be submitted prior to the date of service.

(3) While there is a waiting list for health care benefits, limitations in reimbursement and/or prior authorization may be instituted as provided in §38.16 of this title.

(4) Use of other benefits. The CSHCN program is the payer of last resort. The Children with Special Health Care Needs Services Act provides that any health insurance or other benefits including, but not limited to commercial health insurance, health maintenance organizations, preferred provider organizations, CHAMPUS/CHAMPVA, Medicaid or Medicaid waiver programs, CHIP, liability insurance, or worker's compensation insurance available to the client must be used prior to payment by the CSHCN program.

(5) Denied authorization requests are authorization requests which are incomplete, submitted on the wrong form, lack necessary documentation, contain inaccurate information, fail to meet authorization request submission deadlines, and/or are for ineligible recipients, services, or providers. Denied authorization requests may be corrected and resubmitted for reconsideration. However, authorization requests must meet authorization request submission deadlines. If the results of the reconsideration process are unsatisfactory, denied authorization requests may be appealed according to §38.13 of this title (relating to Right of Appeal).

(e) Pilot projects. The CSHCN program may initiate and participate in pilot projects to determine the fiscal impact of changes in eligibility criteria and the types of services provided. New projects are possible only if funds are available in the current fiscal year. All pilot projects are limited to no more than 10% of the fiscal year appropriation.

§38.10.Payment of Services.

The CSHCN program reimburses participating providers for covered services for CSHCN clients. Payment may be made only after the delivery of the service, with the exception of meals, transportation, and lodging and insurance premium payments. Excluding allowable insurance or health maintenance organization co-payments, the client or client's family must not be billed for the service or be required to make a preadmission or pretreatment payment or deposit. Providers must agree to accept established fees as payment in full. The program may negotiate reimbursement alternatives to reduce costs through requests for proposals, contract purchases, and/or incentive programs.

(1) Payment or denial of claims without insurance or Medicaid. All payments made on behalf of a client will be for claims received by the CSHCN program or its payment contractor within 90 days of the date of service, 90 days from the date of discharge from inpatient hospital and inpatient rehabilitation facilities, or within the submission deadlines listed under paragraph (2) of this section. Claims will either be paid or denied within 30 days. The commissioner of health may waive the filing deadlines, if program criteria for good cause and exceptional circumstances have been shown. Waivers must be requested in writing, must identify the operational problem causing the inability to file on time, must state that the problem has been or is being resolved, and must acknowledge that the waiver request is made one-time only for the identified problem. All outstanding claims related to the identified problem must be considered at one time. A claim must be processed and paid before the end of the second state fiscal year following the state fiscal year in which the service was provided to the client.

(A) Claims will be paid if submitted on the CSHCN program-approved claim form (including electronic claims submission systems), and if the required documentation is received with the claim.

(B) Denied claims are claims which are incomplete, submitted on the wrong form, lack necessary documentation, contain inaccurate information, fail to meet the filing deadline, and/or are for ineligible recipients, services, or providers.

(i) Corrected claims must be submitted on the CSHCN program-approved claim form along with required documentation within the filing deadline established in clause (ii) of this subparagraph.

(ii) Denied claims may be corrected and resubmitted within 180 days of denial for reconsideration. If the results of the reconsideration process are unsatisfactory, denied claims may be appealed according to §38.13 of this title (relating to Right of Appeal).

(2) Claims involving health insurance coverage, CHIP or Medicaid. Any health insurance that provides coverage to the client must be utilized before the CSHCN program can pay for services. Providers must file a claim with health insurance, CHIP, or Medicaid prior to submitting any claim to the CSHCN program for payment. Claims with health insurance must be submitted to the CSHCN program within 90 days of the date of disposition by the other third party resource, but no later than 365 days from the date of service. The CSHCN program will consider claims received for the first time after the 365-day deadline if a third party resource recoups a payment made in error; however, the claim must be received by the CSHCN program within 90 days from the third party's disposition.

(A) Health insurance denial or nonresponse. If a claim is denied by health insurance, the provider may bill the CSHCN program, if the letter of denial also is submitted with the claim form. If the denial letter is not available, the provider must include on the claim form the date the claim was filed with the insurance company, the reason for the denial, name and telephone number of the insurance company, the policy number, the name of the policy holder and identification numbers for each policy covering the client, the name of the insurance company employee who provided the information on the denial of benefits, and the date of the contact. If more than 110 days have elapsed from the date a claim was filed with the third party resource and no response has been received, the claim may be submitted to the CSHCN program for consideration of payment. Claims must be submitted with documentation indicating the third party resource has not responded.

(B) Explanation of benefits (EOB). The health insurance EOB must accompany any claim sent to the CSHCN program for payment, if available. If the EOB is unavailable, the provider must include on the claim form the name and telephone number of the insurance company, the amount paid, the policy number, and name of the insured for each policy covering the client.

(C) Late filing. Claims denied by health insurance on the basis of late filing will not be considered for payment by the CSHCN program.

(D) Deductibles and coinsurance. If the client has other third party coverage, the CSHCN program may pay a deductible or coinsurance for the client as long as the total amount paid to the provider does not exceed the maximum allowed for the covered service, and conforms with current CSHCN program policies regarding third party resources, deductible, and coinsurance.

(3) CSHCN program fee schedules. The CSHCN program or its designee shall reimburse claims for covered medical, dental, and other services according to the following fee schedules.

(A) meals, lodging, and transportation:

(i) meals-up to the amount specified in the current State of Texas Travel Allowance Guide as per diem meal expenses;

(ii) lodging:

(I) hotel-the amount as contracted with the Texas Medicaid Medical Transportation Program (MTP), not to exceed the amount specified in the current State of Texas Travel Allowance Guide as per diem lodging expenses plus all applicable hotel occupancy taxes; and

(II) Ronald McDonald House-the amount contracted with the MTP; and

(iii) transportation:

(I) mileage-the distance and amount per mile as specified in the current State of Texas Travel Allowance Guide;

(II) by contract-the amount as negotiated by the MTP with contractors such as intercity buses, vans, cabs, or urban mass transit authorities;

(III) air fare-the ticket price reflecting the state discount if ordered by MTP, or the billed amount, if MTP had no opportunity to coordinate transportation in an emergency; and

(IV) cab fare-the billed amount, if other transportation is unavailable, or the MTP is unable to coordinate transportation;

(B) administrative fee to social service organizations-the percentage of the charge for meals, lodging, and transportation negotiated by the MTP with these entities;

(D) transportation of remains:

(i) first call-$75;

(ii) embalming-$100;

(iii) container-$75;

(iv) mileage billed by funeral home-$1.00 per mile; and

(v) air freight-the billed amount;

(E) nutritional products-the lower of the billed amount or the Average Wholesale Price (AWP) per unit according to the prices in the current edition of the Drug Topics Red Book, published by Medical Economics Company, Inc., Montvale, New Jersey 07645-1742, on file with the CSHCN program. For products not listed in the current edition of the Drug Topics Red Book, reimbursement shall be based on the same methodology using the AWP supplied by the manufacturer of the product;

(F) nutritional services-the lower of the billed amount or the maximum charge allowed by the Texas Medicaid Program;

(G) out-patient medications:

(i) medications covered by Medicaid when billed by pharmacies-the same drug costs and dispensing fees allowed by the Texas Medicaid Vendor Drug Program;

(ii) medications not covered by Medicaid when billed by pharmacies-the lower of the billed amount or the drug cost available through the database used by the Texas Medicaid Vendor Drug Program plus the same dispensing fees allowed by the Texas Medicaid Vendor Drug Program;

(iii) medications covered by Medicaid when billed by hospitals-(the lower of the billed amount or the drug cost available through the database used by the Texas Medicaid Vendor Drug Program plus $2.28) / 0.970; and

(iv) hemophilia blood factor products-the lower of the billed price or the United States Public Health Service (USPHS) price in effect on the date of service plus a dispensing fee of $.04 per unit of factor;

(H) expendable medical supplies-the lower of the billed amount or the amount allowable by the United States Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS), if available, or by the Texas Medicaid Program;

(I) durable medical equipment:

(i) non-customized-the lower of the billed amount or the amount allowable by the CMS, if available, or the Texas Medicaid Program;

(ii) customized:

(I) customized, non-powered equipment-the lower of the billed amount or the manufacturer's suggested retail price (MSRP) less 18%;

(II) power wheelchairs-the lower of the billed amount or the MSRP less 15%; and

(III) other-when no MSRP has been published, the lower of the billed amount or the dealer's cost plus 25%; and

(IV) delayed delivery penalty-a claim submitted for customized durable medical equipment that was delivered to the client more than 75 days after the authorization date shall be reduced by 10%;

(iii) orthotics and prosthetics-the lower of the billed amount or the amount allowed by the CMS, if available, or the Texas Medicaid Program;

(J) total parenteral nutrition/hyperalimentation (including equipment, supplies and related services)-the lower of the billed amount or the maximum amount allowed by the Texas Medicaid Program;

(K) home health nursing services (provided only through CSHCN program participating home and community support service agencies)-reimbursement for a maximum of 200 hours per client per year, with an additional 200 hours per client per year available, if justification of need and cost effectiveness are documented;

(i) services provided by a registered nurse-the lower of the billed amount or $36 per hour;

(ii) services provided by a licensed vocational nurse-the lower of the billed amount or $28 per hour; and

(iii) services provided by a home health aide or home health medication aide (including those legally delegated by a supervising registered nurse)-the lower of the billed amount or $12 per hour;

(L) outpatient physical therapy, occupational therapy, speech-language pathology, and respiratory therapy:

(i) services provided by therapists other than physicians-the lower of the billed amount or the amount allowed by the Texas Medicaid Program; and

(ii) services provided by physicians-the lower of the billed amount or the amount allowed by the Texas Medicaid Program;

(M) audiological testing and amplification devices:

(i) for clients under age 21-payment is made through the Program for Amplification for Children of Texas (PACT); and

(ii) for clients ineligible for PACT and those age 21 and over-the lower of the billed amount or the amount allowed by PACT;

(N) insurance premium payment assistance program-the lowest available premium for a plan which covers the client, if cost-effective;

(O) hospital (inpatient and outpatient care) and inpatient psychiatric care-reimbursed at 80% of the rate authorized by the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), which is equivalent to the hospital's Medicaid interim rate;

(P) inpatient rehabilitation care-reimbursed at 80% of TEFRA rates, for a maximum of 90 inpatient days per calendar year;

(Q) hospice services-the lower of the billed amount or the amount allowed by the Texas Medicaid Program;

(R) care for renal disease-

(i) renal dialysis services-the lower of the billed amount or the amount allowed by the Texas Medicaid Program; and/or

(ii) renal transplant services-renal transplants may be covered if the projected cost for the transplant and follow-up care is less than that of continuing renal dialysis. Negotiated coverage and cost are based on prior authorization documentation of cost effectiveness;

(S) freestanding ambulatory surgical centers-the lower of the billed amount or the amount allowed by the Texas Medicaid Program based upon Ambulatory Surgical Code Groupings approved by the CMS and the Texas Department of Health;

(T) hospital ambulatory surgical centers-the lower of the amount billed or the amount allowed by the Texas Medicaid Program based upon Ambulatory Surgical Code Groupings approved by the CMS and the Texas Department of Health;

(U) covered professional services by physicians, podiatrists, advanced practice nurses, psychologists, licensed professional counselors, or other providers that are not otherwise specified-the lower of the billed amount or the amount allowed by the Texas Medicaid Program;

(V) independent laboratory-the lowest of the following:

(i) the amount allowed by the Texas Medicaid Program state fee schedule;

(ii) the amount allowed by the CMS national fee schedule; or

(iii) the billed amount;

(W) radiology services-the lower of the billed amount or the amount allowed by the Texas Medicaid program;

(X) dental services-the lower of the billed amount or the amount allowed by the Texas Medicaid program; and

(Y) vision services-the lower of the billed amount or the amount allowed by the Texas Medicaid Program;

(4) Required documentation. The CSHCN program may require documentation of the delivery of goods and services from the provider.

(5) Overpayments.

(A) Overpayments are payments made by the CSHCN program due to the following:

(i) duplicate billings;

(ii) services paid by public or private insurance or other resources;

(iii) payments made for services not delivered;

(iv) services disallowed by the CSHCN program; and

(v) subrogation.

(B) Overpayments made to providers must be reimbursed to the department by lump sum payment or, at the department's discretion, offset against current claims due to the provider for services to other clients. The department also shall require reimbursement of overpayments from any person or persons who have a legal obligation to support the client and have received payments from a payer of other benefits. Providers, clients, and person(s) responsible for clients may appeal proposed recoupment of overpayments by the department according to §38.13 of this title (relating to Right of Appeal).

§38.13.Right of Appeal.

(a) Appeal procedures for families who request authorization of family support services and/or providers.

(1) Administrative review.

(A) If the CSHCN program intends to deny a family's authorization request for family support services according to §38.4(b)(5)(B)(viii) of this title (relating to Covered Services) and/or a provider's authorization request according to §38.4(d)(5) of this title (relating to Covered Services) and/or a provider's claim that has been corrected and resubmitted for reconsideration according to §38.10(1)(B)(ii) of this title (relating to Payment of Services), the program shall give the family or provider written notice of the denial and the right of the family or provider to request an administrative review of the denial within 30 days.

(B) If the CSHCN program intends to deny, modify, suspend, or terminate an individual provider's participation in the CSHCN program, the CSHCN program shall give the provider written notice of the proposed action and the provider's right to request an administrative review of the proposed action within 30 days.

(C) If the family or provider does not respond in writing within the 30-day period, the family or provider is presumed to have waived the administrative review as well as access to a fair hearing, and the CSHCN program's action is final. If the family or provider so requests, the CSHCN program will conduct an administrative review of the circumstances on which the proposed denial of the authorization request/claim and/or the proposed denial, modification, suspension, or termination of provider program participation is based and give the family or provider written notice of the program decision and the supporting reasons within ten days of receipt of the request for administrative review.

(D) The department establishes provider fee schedules and the program's budget alignment methodology by rule. Families and/or providersmay not request administrative review and may not appeal service authorization decisions and/or provider reimbursement amounts that are in accordance with the fee schedules and budget alignment methodology as stated in program rules.

(2) Fair hearing. If the family and/or provider is dissatisfied with the CSHCN program's decision and supporting reasons following the administrative review, the family and/or provider may request a fair hearing in writing addressed to the Children with Special Health Care Needs Program, Bureau of Children's Health, Texas Department of Health, 1100 W. 49th Street, Austin, Texas 78756 within 20 days of receipt of the administrative review decision notice. If the family and/or provider fails to request a fair hearing within the 20-day period, the family and/or provider is presumed to have waived the request for a fair hearing, and the CSHCN program may take final action. A fair hearing requested by a family and/or provider shall be conducted in accordance with §§1.51-1.55 of this title (relating to Fair Hearing Procedures).

(b) Appeal procedures for applicants/clients.

(1) Administrative review.

(A) If the CSHCN program intends to deny eligibility to a program applicant, the program shall give the applicant written notice of the denial and the applicant's right to request an administrative review of the denial within 30 days.

(B) If the CSHCN program intends to deny, modify, suspend, or terminate an individual client's eligibility for health care benefits and/or health care benefits (unless such program actions are authorized by §38.16 of this title (relating to Procedures to Address CSHCN Program Budget Alignment)), the CSHCN program shall give the client written notice of the proposed action and the client's right to request an administrative review of the proposed action within 30 days.

(C) If the applicant/client does not respond in writing within the 30-day period, the applicant/client is presumed to have waived the administrative review as well as access to a fair hearing, and the CSHCN program's action is final. If the applicant/client so requests in writing, the CSHCN program shall conduct an administrative review concerning the circumstances on which the denial of the applicant's eligibility or the proposed denial, modification, suspension, or termination of the client's eligibility and/or health care benefits is based within ten days after receiving the request and shall give the client written notice of the decision and the supporting reasons.

(2) Fair hearing. If the applicant/client is dissatisfied with the CSHCN program's decision and supporting reasons following the administrative review, the applicant/client may request a fair hearing in writing addressed to the Children with Special Health Care Needs Program, Bureau of Children's Health, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756 within 20 days of receipt of the administrative review decision notice. If the applicant/client fails to request a fair hearing within the 20-day period, the applicant/client is presumed to have waived the request for a fair hearing, and the CSHCN program may take final action. A fair hearing requested by the applicant/client shall be conducted in accordance with §§1.51-1.55 of this title (relating to Fair Hearing Procedures).

§38.15.Children With Special Health Care Needs Advisory Committee.

(a) The committee.

(1) The Children with Special Health Care Needs Advisory Committee (committee) shall be appointed under and governed by this section.

(2) The committee is established under the Health and Safety Code, §11.016 which authorizes the board to establish advisory committees.

(b) Applicable law. The committee is subject to the Government Code, Chapter 2110, concerning state agency advisory committees.

(c) Purpose. The purpose of the committee is to provide advice to the board and program staff in developing comprehensive systems of health care for children with special health care needs and their families.

(d) Tasks.

(1) The committee shall advise the board concerning rules relating to the CSHCN program and any other programs administered by the department that provide services to children with special health care needs.

(2) The committee will assist the department and the board to promote the development of systems of care for all children with special health care needs consistent with Title V of the Social Security Act by participating in long-range planning activities including:

(A) discussion of contemporary health care issues affecting children with special health care needs, their families, and service providers; and

(B) as needed:

(i) development of recommendations for rules, policies, needs assessments, and grant project activities;

(ii) review of alternatives for and assistance in the development of program policies including service criteria for program coverage;

(iii) review of and comment on proposed service and quality assurance standards and guidelines for services and providers;

(iv) review of and comment on program quality assurance and utilization review reports; and

(v) review of and comment on program fiscal status reports and cost containment methodologies, including recommendations concerning funding alternatives.

(3) The committee shall carry out any other tasks given to the committee by the board.

(e) Committee abolished. By January 1, 2007, the board will initiate and complete a review of the committee to determine whether the committee should be continued, consolidated with another committee, or abolished. If the committee is not continued or consolidated, the committee shall be abolished on that date.

(f) Composition. The committee shall be composed of 15 full (non-alternate) members and two alternate members.

(1) The composition of the committee shall include seven consumer representatives, eight nonconsumer representatives, and two alternate members (one consumer and one non-consumer).

(A) Consumer members include family members of children with special health care needs receiving services from the CSHCN program, Medicaid, Medicaid waiver programs, CHIP, or other publicly-funded programs for children with special health care needs; adults with disabilities who have received services as children with special health care needs; and representatives of consumer advocacy organizations that represent children with special health care needs.

(B) Nonconsumer members include service providers for children with special health care needs who are enrolled as CSHCN, CHIP or Medicaid providers; representatives of professional associations or representatives from institutions of higher education with expertise in public health and children with special health care needs; and health care professionals who deliver services to children with special health care needs. Nonconsumer members may also be family members of children with special health care needs or adults with disabilities.

(C) Alternate members (one consumer and one nonconsumer) are expected to attend and participate in committee meetings and business. They have all rights, privileges, and expectations of full (non-alternate) committee members, however, they may not vote and may not be reimbursed for expenses, except in the following circumstances. In the absence of any non-alternate committee member of the same category at a meeting, the alternate of that category may serve in the place of the absent non-alternate committee member and is afforded the right to vote, counting towards a quorum, and may be reimbursed for expenses as stipulated in subsection (p) of this section for that meeting only. In the event of a vacancy of a non-alternate member, the alternate in that category will automatically be appointed to fill the unexpired term and will serve as a full (non-alternate) committee member. Persons appointed to alternate positions, whether they subsequently fill unexpired terms or not, will be given special consideration during the next regular committee appointment cycle, but will not be automatically guaranteed a non-alternate committee position.

(2) The members of the committee shall be appointed by the board.

(3) Members of the committee as it existed on December 31, 2002, shall continue to serve until the board appoints members according to this subsection.

(g) Terms of office. The term of office of each member shall be six years (except for alternate members, whose terms shall be for two years). Members shall serve after expiration of their term until a replacement is appointed.

(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 committee shall select from its full (non-alternate) members the presiding officer and an assistant presiding officer to begin serving on January 1 of each odd-numbered year.

(1) Each officer shall serve until December 31 of each even-numbered year. Each officer may holdover until his or her replacement is elected.

(2) The presiding officer shall preside at all committee meetings which he or she attends, call meetings in accordance with this section, appoint subcommittees of the committee 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 committee.

(3) The assistant presiding officer shall perform the duties of the presiding officer in case of the absence or disability of the presiding officer. If the office of presiding officer becomes vacant, the assistant presiding officer will serve until a successor is appointed to complete the unexpired portion of the term of the office of presiding officer.

(4) If the office of assistant presiding officer becomes vacant, it may be filled by vote of the committee.

(5) A member shall serve no more than two consecutive terms as presiding officer and/or assistant presiding officer.

(6) The committee may reference its officers by other terms, such as chairperson and vice-chairperson.

(i) Meetings. The committee shall meet only as necessary to conduct committee business.

(1) A meeting may be called by agreement of department staff and either the presiding officer or at least three members of the committee.

(2) Meeting arrangements shall be made by department staff. Department staff shall contact committee members to determine availability for a meeting date and place.

(3) The committee is not a "governmental body" as defined in the Open Meetings Act. However, in order to promote public participation, each meeting of the committee shall be announced and conducted in accordance with the Open Meetings Act, Texas Government Code, Chapter 551, with the exception that the provisions allowing executive sessions shall not apply.

(4) Each member of the committee shall be informed of a committee meeting at least five working days before the meeting.

(5) A quorum for the purpose of transacting official business is eight members.

(6) The committee is authorized to transact official business only when in a legally constituted meeting with a quorum present.

(7) The agenda for each committee meeting shall include an opportunity for any person to address the committee on matters relating to committee business. The presiding officer may establish procedures for such public comment, including a time limit on each comment.

(j) Attendance. Members shall attend committee meetings as scheduled. Members shall attend meetings of subcommittees to which the 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 committee if a 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 committee and subcommittee meetings during a calendar year, or absence from at least three consecutive committee meetings.

(3) The validity of an action of the committee 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 committee 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 committee 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 committee 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 committee 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 committee within 30 days of each meeting.

(B) After approval by the committee, the minutes shall be signed by the presiding officer.

(m) Subcommittees. The committee may establish subcommittees as necessary to assist the committee in carrying out its duties.

(1) The presiding officer shall appoint members of the committee to serve on subcommittees and to act as subcommittee chairpersons. The presiding officer also may appoint nonmembers of the committee to serve on subcommittees.

(2) Subcommittees shall meet when called by the subcommittee chairperson or when so directed by the committee.

(3) A subcommittee chairperson shall make regular reports to the advisory committee at each committee 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 committee shall not be bound in any way by any statement or action on the part of any committee member except when a statement or action is in pursuit of specific instructions from the board, department, or committee.

(2) The committee and its members may not participate in legislative activity in the name of the board, the department, or the committee except with approval through the department's legislative process. Committee members are not prohibited from representing themselves or other entities in the legislative process.

(3) A committee 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 committee member should not disclose confidential information acquired through his or her committee membership.

(5) A committee 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 or against another person.

(6) A committee 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 or the committee member's or his or her family's receipt of services from or through the department when the member's interest is the same as all others similarly situated.

(o) Reports to board. The committee shall file an annual written report with the board.

(1) The report shall list the meeting dates of the committee and any subcommittees, the attendance records of its members, a brief description of actions taken by the committee, a description of how the committee has accomplished the tasks given to the committee by the board, the status of any rules which were recommended by the committee to the board, and anticipated activities of the committee for the next year.

(2) The report shall identify the costs related to the committee's existence, including the cost of agency staff time spent in support of the committee's activities and the source of funds used to support the committee's activities.

(3) The report shall cover the meetings and activities in the immediately preceding 12 months and shall be filed with the board each January. The report shall be signed by the presiding officer and appropriate department staff.

(p) Reimbursement for expenses. In accordance with the requirements set forth in the Government Code, Chapter 2110, a committee member may receive reimbursement for the member's expenses incurred for each day the member engages in official committee business if authorized by the General Appropriations Act or the budget execution process.

(1) No compensatory per diem shall be paid to committee members unless required by law.

(2) A committee member who is an employee of a state agency, other than the department, may not receive reimbursement for expenses from the department.

(3) A nonmember of the committee who is appointed to serve on a subcommittee may not receive reimbursement for expenses from the department.

(4) 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 committee meeting.

(5) Requests for reimbursement of expenses shall be made on official state travel vouchers prepared by department staff.

§38.16.Procedures to Address CSHCN Program Budget Alignment.

(a) The department shall analyze actuarial cost projections concerning CSHCN administrative and client services to estimate the amount of funds needed in the fiscal year by the program to serve CSHCN clients and shall monitor such program cost projections and funding analyses at least monthly to determine whether the estimated amount of funds needed by the program will:

(1) exceed the program's appropriated funds and other available resources for the fiscal year; or

(2) be less than the program's appropriated funds and other available resources for the fiscal year.

(b) When the CSHCN program projects that the estimated amount of funds needed in the fiscal year by the program to serve CSHCN clients will exceed the program's appropriated funds and other available resources for the fiscal year, the program shall use the following methodology to reduce/ limit the amount of funds to be expended by the program:

(1) give clients and providers who will be directly affected written notice of any reductions or limitations of services, coverage, and/or reimbursements;

(2) take the following actions in the order listed only until the projected amount of funds to be expended by the program approximately equals, but does not exceed, the program's appropriated funds and other available resources:

(A) implement administrative efficiencies, while avoiding changes which may jeopardize the quality and integrity of CSHCN program service delivery;

(B) establish and administer a waiting list for health care benefits according to the procedures in this section;

(i) provide only limited prior authorization for family support services for ongoing clients, as determined by the medical director or other designated medical staff, only in order to continue services already being provided at the time the waiting list is established, and/or when the specific services are required to prevent out-of-home placement of the client (as documented by the CSHCN program regional case management staff/ contractors), and/or when the provision of such services is cost effective for the program;

(ii) disallow prior authorization (coverage) of diagnosis and evaluation services for applicants who qualify for up to 60 days of program coverage for diagnosis and evaluation services only and refer such applicants to case management services; and

(iii) allow limited prior authorization of diagnosis and evaluation services on a short-term basis, only when such information is needed to assess whether clients on the waiting list have "urgent need for health care benefits" as described in subsection (e) of this section and only with prior authorization and approval by the medical director or other designated medical staff.

(D) place new applicants or re-applicants with lapsed eligibility who are determined eligible for program health care benefits (new clients for health care benefits) on the waiting list. These clients will be ordered on the waiting list according to the date/time the client is determined eligible for program health care benefits;

(E) reduce/limit reimbursements for contractual service providers, while avoiding changes which may jeopardize the integrity of the contractor base and thereby decrease client access to services;

(F) place clients who are eligible to receive CSHCN program health care benefits and who currently are not on the waiting list (ongoing clients for health care benefits) on the waiting list. These clients will be ordered on the waiting list according to the original date/time that starts the client's latest uninterrupted sequence of eligibility for program health care benefits, and in the following order of movement to the waiting list:

(i) ongoing clients for health care benefits who have one or more sources of substantial health insurance coverage (such as Medicaid/ CHIP/ or other private health insurance similar in scope) in addition to the CSHCN program (not including those ongoing clients for whom the CSHCN program pays the insurance premiums);

(ii) ongoing clients for health care benefits in the following order by age groups: 21 years of age or older; 20 years of age; 19 years of age; 18 years of age; and

(iii) all other ongoing clients for health care benefits who do not have an urgent need for health care benefits;

(G) employ additional measures to reduce/ limit the amount of funds to be expended by the program as the board shall direct by rule.

(c) If the procedures described in subsection (b)(2)(A)-(F) of this section enable the program to project that the estimated amount of funds to be expended by the program in the fiscal year approximately equals, but does not exceed, the program's appropriated funds and other available resources, the program shall take the following additional steps in order to provide health care benefits to as many clients with urgent need for health care benefits as possible who are currently on the waiting list.

(1) generate cost savings by taking the following steps in the order listed:

(A) give clients and providers who will be directly affected written notice of any reductions or limitations of services, coverage, and/or reimbursements;

(B) reduce/limit reimbursements for contractual service providers, while avoiding changes which may jeopardize the integrity of the contractor base and thereby decrease client access to services;

(2) utilize cost savings generated to remove as many clients with urgent need for health care benefits as possible from the waiting list and provide health care benefits to those clients. Clients with urgent need for health care benefits shall be removed from the waiting list according to the original date/time that starts the client's latest uninterrupted sequence of eligibility for program health care benefits and in the following group order:

(A) clients who are less than 21 years old and who have an urgent need for health care benefits, as described in subsection (e) of this section;

(B) clients who are 21 years of age or older and who have an urgent need for health care benefits, as described in subsection (e) of this section;

(3) provide health care benefits (which may include payment of outstanding bills for health care benefits) for clients with urgent need for health care benefits who are removed from the waiting list;

(A) as long as program cost savings funds are available; and

(B) if the outstanding bills for health care benefits are for dates of service that are within the time period that program cost savings funds are available and provided the client was eligible for program health care benefits at the time of the dates of service;

(4) provide limited health care benefits and/or payment of outstanding bills for health care benefits for clients with urgent need for health care benefits who are on the waiting list and remain on the waiting list. The program's coverage of such health care benefits may be limited in scope, amount, and duration and is not intended to be sustained over time. Clients with urgent need for health care benefits who are on the waiting list will be served in the same order used in paragraph (2) of this subsection to remove clients with urgent need for health care benefits from the waiting list. This coverage may be provided to clients with urgent need on the waiting list prior to or at any point during activities described by paragraphs (2)-(3) of this subsection only:

(A) when projected cost savings funds are projected to be insufficient to remove clients with urgent need for health care benefits (or additional clients with urgent need for health care benefits) from the waiting list and maintain continuous program health care benefits coverage for those clients or when projected cost savings funds may lapse if not expended in this manner;

(B) as long as program cost savings funds are available; and

(C) if the outstanding bills for health care benefits are for dates of service that are within the time period that program cost savings funds are available and provided the client was eligible for program health care benefits at the time of the dates of service.

(d) When the CSHCN program projects that the estimated amount of funds to be expended by the program in the fiscal year is less than the program's appropriated funds and other available resources due to the cost reduction, limitation, or deferral procedures implemented according to subsections (b) or (c) of this section, or the program's receipt of additional funding, or funding analysis as described in subsection (a)(2) of this section, resulting in a projected amount of unobligated funds, the program shall increase the amount of funds to be expended by the program.

(1) In an effort to expend unobligated funds (except for unobligated funds resulting from program actions taken according to subsection (c) of this section) the program shall utilize the following steps in the order listed only until the program projects that the estimated amount of unobligated funds will be expended by the program during the fiscal year:

(A) take clients off the waiting list according to the original date/time that starts the client's latest uninterrupted sequence of eligibility for program health care benefits and in the following group order:

(i) clients who are less than 21 years old and who have an urgent need for health care benefits, as described in subsection (e) of this section;

(ii) clients who are 21 years of age or older and who have an urgent need for health care benefits, as described in subsection (e) of this section;

(iii) clients who are less than 21 years old who do not have an urgent need for health care benefits and who are clients who were placed on the waiting list when they were ongoing clients and who have had no lapse in eligibility while on the waiting list or who are new clients who are re-applicants for health care benefits and who have had a lapse in eligibility for no longer than the 12 months prior to the date/time that starts their latest uninterrupted sequence of eligibility;

(iv) clients who are 21 years of age or older who do not have an urgent need for health care benefits and who are clients who were placed on the waiting list when they were ongoing clients and who have had no lapse in eligibility while on the waiting list or who are new clients who are re-applicants for health care benefits and who have had a lapse in eligibility for no longer than the 12 months prior to the date/time that starts their latest uninterrupted sequence of eligibility;

(v) all other clients who are less than 21 years old who do not have an urgent need for health care benefits; and

(vi) all other clients who are 21 years of age or older who do not have an urgent need for health care benefits.

(B) provide health care benefits (which may include payment of outstanding bills for health care benefits) for clients taken off the waiting list:

(i) as long as program unobligated funds are available; and

(ii) if the outstanding bills for health care benefits are for dates of service that are within the time period that program unobligated funds are available and provided the client was eligible for program health care benefits at the time of the dates of service;

(C) provide limited health care benefits and/or payment of outstanding bills for health care benefits for clients who are on the waiting list and remain on the waiting list. The program's coverage of such health care benefits may be limited in scope, amount, and duration and is not intended to be sustained over time. Clients on the waiting list will be served in the same order used in paragraph (1) of this subsection to take clients off the waiting list. This coverage may be provided to clients on the waiting list prior to or at any point during activities described by paragraphs (1)-(2) of this subsection only:

(i) when projected unobligated funds are projected to be insufficient to take clients (or additional clients) off the waiting list and maintain continuous program health care benefits coverage for those clients or when projected unobligated funds may lapse if not expended in this manner;

(ii) as long as program unobligated funds are available; and

(iii) if the outstanding bills for health care benefits are for dates of service that are within the time period that program unobligated funds are available and provided the client was eligible for program health care benefits at the time of the dates of service;

(D) if the CSHCN program projects that the amount of funds to be expended by the program in the fiscal year will be less than the program's appropriated funds and other available resources after no clients eligible for program health care benefits remain on the waiting list, the program may take the following actions in the following order:

(i) eliminate limitations on prior authorization for family support services;

(ii) provide prior authorized coverage of diagnosis and evaluation services for applicants who qualify for up to 60 days of program coverage for diagnosis and evaluation services only;

(iii) remove any of the additional measures taken to reduce/ limit the amount of funds to be expended by the program as directed by the board by rule;

(iv) remove any reductions/ limitations to contractor reimbursements that have been implemented; and

(v) expand program services.

(2) In an effort to expend unobligated funds resulting from program actions taken according to subsection (c) of this section (unobligated cost savings funds that remain after all clients with urgent need for health care benefits have been removed from the waiting list and provided health care benefits) the program shall utilize the following steps in the order listed only until the program projects that the estimated amount of unobligated funds will be expended by the program during the fiscal year:

(A) take additional clients off the waiting list according to the original date/time that starts the client's latest uninterrupted sequence of eligibility for program health care benefits and in the following group order:

(i) clients who are less than 21 years old who do not have an urgent need for health care benefits and who are clients who were placed on the waiting list when they were ongoing clients and who have had no lapse in eligibility while on the waiting list;

(ii) clients who are 21 years of age or older who do not have an urgent need for health care benefits and who are clients who were placed on the waiting list when they were ongoing clients and who have had no lapse in eligibility while on the waiting list;

(B) provide health care benefits (which may include payment of outstanding bills for health care benefits) as stipulated in subsection (d)(1)(B) of this section for these clients taken off the waiting list;

(C) provide limited health care benefits and/or payment of outstanding bills for health care benefits for clients identified in subsections (d)(2)(A)(i) and (ii) of this section who are on the waiting list and remain on the waiting list. The program's coverage of such health care benefits may be limited in scope, amount, and duration and is not intended to be sustained over time. These clients on the waiting list will be served in the same order used in paragraph (2)(A) of this subsection to take these clients off the waiting list. This coverage may be provided to these clients on the waiting list prior to or at any point during activities described by paragraphs (2)(A) and (2)(B) of this subsection and only as stipulated in subsections (d)(1)(C)(i)-(iii) of this section;

(D) remove any of the additional measures taken to generate cost savings by the board by rule according to subsection (c)(1)(C); and

(E) remove any reductions/ limitations to contractor reimbursements that have been implemented.

(e) The program shall establish a protocol to be used by the medical director or other designated medical staff to determine whether a client has an "urgent need for health care benefits" by considering criteria including, but not limited to, the following:

(1) the physician or dentist who signs the client's application and/or the treating physician/dentist attests and/or documents the physician/dentist's determination that delay in receiving health care benefits could result in loss of life, permanent increase in disability, or intense pain/suffering;

(2) the client/family states that no other source of health insurance coverage is available to the client;

(3) information on the application for health care benefits indicates the complexity of the client's condition and/or need for care;

(4) information received from CSHCN regional case management staff/contractors supports other information gathered and/or indicates that a delay in health care benefits could reasonably be expected to result in an out-of-home placement/ institutionalization of the client because the family cannot continue to care for the client; and

(5) information obtained from diagnosis and evaluation services as prior authorized by the program medical director or other designated medical staff.

(f) The CSHCN program central office may establish and administer the waiting list for health care benefits to address a budget shortfall.

(1) In order to facilitate contacting clients on the waiting list, the CSHCN program shall collect information including, but not limited to the following:

(A) the client's name, address, and telephone number;

(B) the name, address, and telephone number of a contact person other than the client;

(D) the date on which the client became eligible for health care benefits;

(E) the client's functional limitations or needs;

(F) the range of services needed by the client; and

(G) a date on which the client is scheduled for reassessment.

(2) The waiting list is maintained continually from one fiscal year to the next. Clients must maintain eligibility for health care benefits to remain on the waiting list. A lapse of eligibility for health care benefits constitutes loss of position on the waiting list.

(3) The program shall refer clients on the waiting list to other possible sources of services, and shall contact waiting list clients periodically to confirm their continuing need for CSHCN program services.

(4) The program will offer case management services as needed/desired to all clients who are eligible for health care benefits, including those on the waiting list for health care benefits.

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 March 7, 2003.

TRD-200301630

Susan K. Steeg

General Counsel

Texas Department of Health

Effective date: March 27, 2003

Proposal publication date: September 20, 2002

For further information, please call: (512) 458-7236

Chapter 295. OCCUPATIONAL HEALTH

Subchapter C. TEXAS ASBESTOS HEALTH PROTECTION

25 TAC §§295.31, 295.32, 295.34 - 295.56, 295.58 - 295.62, 295.64, 295.65, 295.69 - 295.72

The Texas Department of Health (department) adopts amendments to §§295.31-295.32, 295.34-295.56, 295.58-295.62, 295.64-295.65 and 295.69-295.72 concerning Texas asbestos health protection definitions, responsibilities of building owners or operators, licensing, work practices, training and enforcement to update the rules to conform with statutory changes. Sections 295.31, 295.32, 295.34, 295.36-295.40, 295.42, 295.43, 295.45-295.48, 295.53-295.56, 295.58-295.62, 295.64, 295.65, 295.69, and 295.70 are adopted with changes to the proposed text as published in the December 6, 2002, issue of the Texas Register (27 TexReg 11424). Sections 295.35, 295.41, 295.44, 295.49 - 295.52, 295.71, and 295.72 are adopted without changes and therefore will not be republished.

Government Code, §2001.039 requires that each state agency review and consider for readopting each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Sections 295.21 and 295.31-295.73 were reviewed and the department determined that reasons for adopting the sections continue to exist. However, the rules needed revisions as described in this preamble. Sections 295.21, 295.33, 295.57, 295.63, 295.66-295.68 and 295.73 were not proposed for amendment but were also opened for comments in the proposed preamble, and no changes were made.

The Notice of Intention to Review was published in the Texas Register (25 TexReg 4360) on May 12, 2000. The department received no comments on these sections as a result of the publication of the notice.

The purpose of the proposed changes to the rules is to incorporate changes to Article 4477-3a, Vernon's Texas Civil Statutes and Chapter 161 of the Health and Safety Code as amended by House Bill 2085, 76th Legislature, 1999 and Senate Bill 509, House Bill 1279, House Bill 1927 and House Bill 2844, 77th Legislature, 2001. The 1999 changes establish provisional licenses and registrations, establish fees for late renewals, specify the full range of penalties applicable to violations of the rules and establishes the timeframe for notification of examination results. The 2001 changes require municipalities to verify if an asbestos survey is conducted prior to issuance of a renovation/demolition permit, prohibit the installation of asbestos, expand the department's ability to take enforcement action aganst contractors who remove floor covering, and allow entities to test new abatement methods that have been approved by the Environmental Protection Agency (EPA). In addition, these amendments are part of the department's continuing effort to update and clarify its rules.

The following comments from the public were received concerning the proposed sections. Following each comment is the department's response and any resulting change(s).

Comment: Concerning §295.31(b), one commenter suggested the last part of the sentence be stated as, "... activities in public and commercial buildings and facilities as defined by these sections."

Response: The department agrees and has incorporated the appropriate change.

Comment: Concerning §295.32, commenters attending the Asbestos Training Provider Seminar suggested the word "building" be defined.

Response: The department disagrees and believes that the standard definition used in the industry applies. No change was made as a result of this comment.

Comment: Concerning §295.32, several commenters suggested that the rules should define "disturb" or "disturbance."

Response: The department agrees and has added the definition of disturbance based on the definition of disturbance in 29 CFR 1926.1101(a).

Comment: Concerning §295.32(3), one commenter expressed concern with the definition of "adequately wet."

Response: The department agrees and has changed the definition to match the definition of adequately wet in 40 CFR 61.141.

Comment: Concerning §295.32(6), one commenter suggested modifying the definition of "airlock" to allow for the fact that there is no way that air can flow only towards the inside of the enclosure.

Response: The department agrees and has incorporated the appropriate language.

Comment: Concerning the definition of "air monitoring" in §295.32(7), one commenter suggested that air sampling and analysis by the NIOSH 7400 method is used to count all fibers (to include asbestos fibers as defined by the method).

Response: The department agrees. The analysis by phase contrast microscopy by the NIOSH 7400 method counts all fibers meeting a certain aspect ratio which includes all fibers meeting that criteria. The definition was changed so as not to limit the fibers to asbestos, since it is not limited by the microscopy method that the consultant or laboratory may select.

Comment: Concerning proposed §295.32(9), one commenter expressed confusion concerning the definition of "asbestos abatement" as it pertains to operations and maintenance (O&M) activities.

Response: The department clarifies that where O&M activities involve abatement of ACM/ACBM, the rules treat such activity as abatement.

Comment: Concerning proposed §295.32(9), one commenter recommended a grammatical change to the definition of "asbestos abatement."

Response: The department agrees and has added commas before and after the phrase "or that has the effect of" in the definition.

Comment: Concerning §295.32(10), one commenter suggested the following change: "Asbestos abatement activity - Asbestos abatement, or any on-site preparations or clean-up related to the abatement."

Response: The department agrees and has incorporated the appropriate language.

Comment: Concerning §295.32(10), one commenter suggested that the qualification of "preparation that does not disturb asbestos" be added to the definition of "asbestos abatement activity" for additional clarity.

Response: The department believes that incorporating this phrase would not offer any clarity to the rule. No change was made as a result of this comment.

Comment: Concerning §295.32(13), one commenter suggested changing "which" to "that" for clarity.

Response: The department agrees and has incorporated the appropriate language.

Comment: Concerning §295.32(13), two commenters questioned what was meant by "every day of the project."

Response: The department agrees and has changed the language to "to be employed every day of the asbestos abatement activity."

Comment: Concerning §295.32(14), one commenter suggested the addition of the word "interior" to "parts of a public or commercial building."

Response: The department disagrees. This definition comes from 40 CFR Part 763, Subpart E. No change was made as a result of this comment.

Comment: Concerning §295.32(14), one commenter suggested, "ending the sentence with the word 'members' and deleting remainder of the sentence."

Response: The department disagrees. The definition of ACBM comes from 40 CFR Part 763, Subpart E. No change was made as a result of this comment.

Comment: Concerning §295.32(15), one commenter stated a "composite sample should be used for wallboard. Wallboard layers are never separated, and then crushed. They are always crushed or crumbled as a unit."

Response: The department disagrees. Composite samples are not allowed in a public building under §295.32(15) or §295.58(h)(1). The department believes that it is in the best interest of public health to require that joint compound be evaluated no differently than other asbestos-containing material. No change was made as a result of this comment.

Comment: Concerning §295.32(15), one commenter said, "the department has misinterpreted OSHA's intent concerning layered materials, specifically wallboard and joint compound. OSHA regulates all exposure to 'asbestos', regardless of the amount or percentage of asbestos contained in a material. OSHA also regulates and specifies how an employer will control exposure to 'asbestos containing materials otherwise known as ACM.' OSHA defines ACM as materials containing more than one percent asbestos and specifies exposure control methods for OSHA Class I-IV Asbestos Work Activities.... the department's current stance on this issue is overly restrictive, costly to business, and has not been proven to be needed in the state of Texas to control worker exposure. The following definition recommendation is provided for the department's consideration: §295.32(15) Asbestos-containing material (ACM) - Materials or products that contain more than 1.0% of any kind or combination of asbestos, as determined by the Environmental Protection Agency recommended methods as listed in EPA/600/R-93/116, July 1993, 'Method for the Determination of Asbestos in Bulk Building Materials.'"

Response: The department disagrees and believes that public health is better protected with the proposed definition. OSHA regulations are minimum standards for asbestos-related activities for the protection of workers and do require that protection be afforded if the joint compound contains more than one percent asbestos. It only makes sense that both workers and the public be afforded at least the same protection in a public building. No change was made as a result of this comment.

Comment: Concerning §295.32(18), two commenters expressed confusion about the term "every day" in the definition of "asbestos project design."

Response: The department agrees and has changed the language to "to be employed every day of the asbestos abatement activity."

Comment: Concerning §295.32(19), one commenter stated the following: "The addition of 'preparation of plans and specifications' to this paragraph is redundant and included in the definition (18) above. It should be deleted from this paragraph."

Response: The department agrees and has incorporated the appropriate change.

Comment: Concerning §295.32(23), two commenters recommended that "building owner" be changed to "public building owner."

Response: The department removed the word "public" from this definition in the proposed rules since it may apply to all buildings.

Comment: Concerning §295.32(23) and §§295.34(b)(5) and (6) and the rules in general, one commenter expressed the following: "First, we support strongly the department's decision last year to rescind Asbestos Regulatory Clarification 15 concerning the contracting ability of public building owners and are pleased that the reconsidered policy will now be reflected in TAHPR. Specifically, we support the amendments reflected in §§295.32(23) and 295.34(b)(5) and (6). We would encourage the department to continue to analyze amendments to TAHPR with a similar performance-based philosophy and with an emphasis on whether or not regulatory requirements enhance protection of public health by realistically decreasing exposure to asbestos fibers."

Response: The department appreciates the commenter's remarks concerning the rules. No change was made as a result of this comment.

Comment: Concerning §295.32(29), two commenters suggested restoring the following sentence to the definition of "commercial building": "Interior space includes exterior hallways connecting buildings, porticos, and mechanical systems used to condition interior space."

Response: The department agrees and has made the appropriate language change.

Comment: Concerning §295.32(29), one commenter stated the following: "The enabling legislation from which these rules arise clearly includes multi-family residential structures as public buildings."

Response: The department disagrees. The enabling legislation is the Texas Asbestos Health Protection Act (TAHPA), article 4477-3a, Tx. Civ. Stat. Ann. The TAHPA defines a public building to exclude an apartment building with no more than four dwelling units. No change was made as a result of this comment.

Comment: Concerning proposed §§295.32(29), (41), (49), (51) and (78), one commenter stated the following: "The definitions of, and distinctions among, 'public,' 'commercial' and 'industrial' buildings, a 'facility' and an 'installation' remain as vague and confusing as ever."

Response: The department derives the definitions of public building and commercial building from 40 CFR Part 763, Subpart E, Appendix C. In a commercial building, which includes an industrial building, asbestos-related activities must be performed by accredited persons. In a public building, asbestos-related activities must be performed by licensed persons. The department derives the definition of facility from 40 CFR §61.141 (Asbestos NESHAP). In a facility that is not a public or commercial building, a person who has been trained in the provisions of 40 CFR Part 61, Subpart M, must be present to strip, remove, or otherwise handle or disturb Regulated Asbestos Containing Material (RACM) at a facility. An installation is included in the definition of facility and is defined in this regulation to correspond with the definition in 40 CFR Part 61, Subpart M. All of these various definitions are required to determine when certain licenses, accreditations, or training is required of the persons responsible for the asbestos activity or when certain notifications of demolition or renovation are to be sent to the department. No change was made as a result of this comment.

Comment: Concerning §295.32(30), several commenters identified an incorrect citation within the definition of "competent person."

Response: The department agrees and has corrected the citation to reflect 29 CFR §1926.1101. The definition has also been reworded to indicate that a NESHAP-competent person needs NESHAP training.

Comment: Concerning §295.32(31), one commenter suggested the following change for clarity: "with high-efficiency particulate air-filter filtered negative air machines."

Response: The department has reworded the definition for clarity.

Comment: Concerning §295.32(31), one commenter suggested the following change to the definition of "containment": "The portion of the regulated area that is sealed and placed under negative pressure with negative air machines equipped with primary, secondary and high efficiency particulate air filters."

Response: The department believes that the use of primary and secondary filters is at the contractor's discretion. No change was made as a result of this comment.

Comment: Concerning proposed §295.32(31) and (38), one commenter expressed that the definition of "containment" should be replaced with the definition of "enclosure."

Response: The department disagrees. Enclosure is a method of asbestos abatement involving the construction of a permanent barrier that surrounds the ACBM. A containment is a temporary structure that isolates areas being abated and facilitates safe entry of abatement workers to the work area while restricting it from public access. These definitions need to remain as stated in order to preserve the distinction between the two words. No change was made as a result of this comment.

Comment: Concerning §295.32(32), one commenter stated, "Consultants, Laboratories, etc. do business 'under contract' and appear to be half included in this definition."

Response: The department believes that such businesses are contractors and are fully included in this definition. No change was made as a result of this comment.

Comment: Concerning §295.32(35), one commenter recommended "retaining the acronym 'AHERA' that is proposed for deletion."

Response: The department disagrees. The proper citation of the applicable federal regulation is 40 CFR Part 763, Subpart E and has therefore deleted "Asbestos Hazard Emergency Response Act."

Comment: Concerning proposed §295.32(37), one commenter suggested that the use of encapsulation as a finishing procedure, in the asbestos abatement process, be included in the definition of "encapsulation."

Response: The department disagrees. Encapsulation is one of three abatement methods and not part of the process of finishing the abatement project. Final cleaning, such as wet wiping and vacuuming, is not an abatement method. Encapsulation involves wetting the ACM to penetrate or cover the material to control the release of fibers from the ACM. Encapsulation is not defined to mean the covering/coating of asbestos fibers that have settled onto surfaces. No change was made as a result of this comment.

Comment: Concerning proposed §295.32(41), two commenters identified a typographical error in the definition of "facility."

Response: The department has corrected the error by separating the words "condominiums" and "or."

Comment: Concerning proposed §295.32(41), one commenter suggested adding the word "institution" to the definition of "facility."

Response: The department disagrees. This definition is from the NESHAP. No change was made as a result of this comment.

Comment: Concerning proposed §295.32(41), one commenter suggested including "any active or inactive disposal site" in the definition of "facility."

Response: The department disagrees. The department has a Memorandum of Understanding with the Texas Commission on Environmental Quality (see §295.72) to regulate landfills. No change was made as a result of this comment.

Comment: Concerning §295.32(44), one commenter stated "If a wall unit containing chrysotile asbestos in the sheetrock mud is crumbled, pulverized, or reduced to powder by hand pressure, it becomes non-asbestos containing material. To the best of my knowledge, a sheetrock wall unit cannot be crumbled, pulverized, or reduced to powder by hand pressure in layers. It is a whole wall unit that is reduced to dust, thus taking the asbestos containing material below the limits of asbestos containing material. In other words, the chrysotile asbestos would be well below 1% of the crumbled, pulverized, or reduced to powder sheetrock wall unit."

Response: The rules do not allow for composite sampling in a public building. See §295.58(h)(1). The rules allow for composite sampling of joint compound on NESHAP facilities per EPA direction. No change was made as a result of this comment.

Comment: Concerning proposed §295.32(47), one commenter suggested the definition of "independent third-party air monitor" read, "A person retained to collect baseline, area and clearance air samples to be analyzed for the owner of the building or facility being abated. The person must not be employed by the abatement contractor to analyze any baseline, area and clearance air samples collected during the abatement projects being monitored subject to the provisions of §295.37 of this title (relating to Licensing and Registration: Conflicts of Interests)."

Response: The department disagrees and believes that this suggested change adds no further clarity to the definition. No change was made as a result of this comment.

Comment: Concerning proposed §295.32(50), one commenter suggested the following paragraph be added to the definition of "inspection": "A sample of building material taken by an O&M Supervisor to determine if there is an asbestos content prior to a small-scale, short-duration maintenance procedure."

Response: The department disagrees. The TAHPR do not allow O&M supervisors to collect samples. No change was made as a result of this comment.

Comment: Concerning proposed §295.32(50) and (90), four commenters recognized that the definitions of "inspection" and "survey" are identical.

Response: The department agrees. The definitions are identical to avoid confusion that might come from the use of either term. No change was made as a result of this comment.

Comment: Concerning proposed §295.32(52), one commenter stated: "A sheetrock wall system, consisting of paint, texture, sheetrock mud, and sheetrock does not fit this definition. The paint cannot be readily separated from the texture, nor can the texture be readily separated from the sheetrock mud. The definition of 'readily separated' does not realistically describe what happens when the paint, texture, and mud are separated from the sheetrock. In my experience, the wall unit must be wetted, allowing the water to soak into the wall, and the paint, texture, and mud must be scraped off with something similar to a putty knife. I would not call that method 'readily separated'. Any other method would not 'separate' mud from the sheetrock. There would be bits of mud left on the sheetrock and bits of sheetrock left in the mud, along with all of the texture and paint that is on the wall unit. I believe wall units should be tested as a unit, not in layers.

Response: To aid in clarity, the department has removed the word "readily" to take away any confusion that could be caused by a judgment call from the laboratory technician or the inspector.

Comment: Concerning proposed §295.32(56), one commenter recommended that the acronym "ACBM" be spelled out in the definition of "major fiber release episode."

Response: The department disagrees. The acronym was spelled out previously in the definition of "Asbestos-containing building material." No change was made as a result of this comment.

Comment: Concerning proposed §295.32(58), one commenter recommended that the acronym "ACBM" be spelled out in the definition of "minor fiber release episode."

Response: The department disagrees. The acronym was spelled out previously in the definition of "Asbestos-containing building material." No change was made as a result of this comment.

Comment: Concerning proposed §295.32(65), one commenter stated that there is a conflict between the definition of "operations and maintenance" and the definition of "asbestos abatement."

Response: The department disagrees and believes there is no conflict in the definitions. The department does recognize that there is an inconsistency in the rules and has made changes to §295.43(a) and (b)(1) to differentiate asbestos O&M activity from O&M.

Comment: Concerning proposed §295.32(65), one commenter stated, "This rule should include the authorization to take a sample of the building material to be disturbed to an accredited lab to determine if asbestos containing material will be encountered during the procedure."

Response: The department disagrees. Only licensed inspectors may collect samples. No change was made as a result of this comment.

Comment: Concerning proposed §295.32(66), one commenter recommended the deletion from the definition of "operations and maintenance (O&M) contractor" of work practice and licensing matters, which are already stated under §§295.43 and 295.59.

Response: The department agrees and has modified the definition as suggested.

Comment: Concerning proposed §295.32(66), one commenter identified a capitalization error in the third occurrence of the word "operations" in the definition of "operations and maintenance (O&M) contractor."

Response: The department agrees and has corrected the capitalization error.

Comment: Concerning proposed §295.32(66), one commenter suggested adding a more specific reference in the definition of "operations and maintenance (O&M) contractor" for the EPA "Green Book."

Response: The department has modified this definition and deleted the reference to the EPA "Green Book."

Comment: Concerning proposed §295.32(67), one commenter stated that everything after the first sentence in the definition of "operation and maintenance (O&M) manual" is a record-keeping activity and belongs in §295.62.

Response: The department agrees and has moved this language to §295.62.

Comment: Concerning proposed §295.32(75), two commenters recommended modifying the definition of "plans and specifications" to delete the reference to the regulated area. One commenter said that the regulated area applies more to formally designed abatement project documents but has little relevance to O&M work.

Response: The department disagrees. The definition describes what plans and specifications are. It does not imply anything about when plans and specifications are required. If plans and specifications were required, as under §295.34(g), the location of the regulated area would also be included. No change was made as a result of this comment.

Comment: Concerning proposed §295.32(77), two commenters recommended that the definition of "preparation" be modified such that consultants are not restricted by the unnecessarily detailed activities included in the definition.

Response: Many stakeholders had requested the department to define which activities, performed prior to the start of abatement, required licensed persons in order to avoid non-compliance. This definition was provided to remove any confusion about these activities. The department believes the definition is sufficiently detailed to include typical activities involved in preparation. It is not intended to be directive or limiting in nature. No change was made as a result of this comment.

Comment: Concerning proposed §295.32(77), one commenter recommended that in the definition of "preparation," the word "is" be inserted in the phrase "but not limited to."

Response: The department disagrees and believes that this word would not provide additional clarity to this definition. No change was made as a result of this comment.

Comment: Concerning proposed §295.32(77)(C), one commenter expressed the following: "During activities prior to the existence of a regulated area according to (81), does the abatement contractor have "control" of the space? During this time, may the owner perform work in the space in anticipation of abatement, such as removing uncontaminated items, or for other purposes?"

Response: The department believes that prior to the establishment of the regulated area, the owner may remove uncontaminated items. No change was made as a result of this comment.

Comment: Concerning proposed §295.32(78), two commenters requested that the definition of "public building" read as it did prior to the proposed rule changes.

Response: The department agrees and has restored the language.

Comment: Concerning proposed §295.32(78), one commenter recommended the following modification to the definition of "public building": "The term includes any such interior space during a period of vacancy, including."

Response: The department agrees and has made the appropriate language change.

Comment: Concerning proposed §295.32(78), one commenter requested that the department define the characteristics of buildings that make them "similar" to "schools, hospitals, prisons" for purposes of identifying them as "public buildings."

Response: Schools, hospitals, and prisons provide for public access and are therefore public buildings. Any building that provides public access or occupancy has the characteristics of a public building. Subparagraphs (A) thru (G) are examples of buildings not included. No change was made as a result of this comment.

Comment: Concerning proposed §295.32(80), one commenter suggested that the department use the definition from 40 CFR Part 61 to define "regulated asbestos-containing material."

Response: The department agrees and has modified the definition accordingly.

Comment: Concerning proposed §295.32(82), commenters attending the Asbestos Training Provider Seminar suggested including the word "maintenance" in the definition of "renovation."

Response: The department disagrees. Maintenance is not included in the definition because a survey is required before renovation. Not all maintenance disturbs asbestos. No change was made as a result of this comment.

Comment: Concerning the definition of "response action" in proposed §295.32(83), one commenter suggested adding the word "and" before "operation" and making "operation" plural.

Response: The department agrees and has made the appropriate change.

Comment: Concerning proposed §295.32(84), two commenters expressed confusion regarding the definition of "responsible person." They said that the term responsible person is hard to find mentioned in the regulations. "Secondly, OSHA requires that a 'Competent Person' 29 CFR §1926.1101(b) and 29 CFR §1926.1101(e)(6) supervise abatement activities. However, OSHA applies to the workers of an employer. Consequently, there are at least two 'Competent Persons' on site: the one working for the abatement contractor and the other working for the consultant. According to the TAHPA rule, the only responsible people on the project are those that are licensed and the owner. Their responsibilities are identified in other specific paragraphs of the regulation."

Response: The department clarifies that the "responsible person" may also be the "competent person" if he is appropriately trained and if he is responsible for all business operations and compliance. No change was made as a result of this comment.

Comment: Concerning proposed §295.32(87), one commenter stated, "The sentence 'These (SSSD) tasks in a commercial building do not require accreditation.' should be removed from the definition and added to §295.57 as part of the work requirements in a commercial building."

Response: The department agrees and has deleted the suggested language from the definition.

Comment: Concerning proposed §295.32(87), one commenter recommended that the definition of "small-scale, short-duration activities (SSSD) be modified to allow the O&M supervisor to collect samples."

Response: The department disagrees. Samples may only be collected by licensed asbestos inspectors in accordance with §295.50. No change was made as a result of this comment.

Comment: Concerning proposed §295.32(87), one commenter recommended a grammatical change to the definition of "small-scale, short-duration activities (SSSD)."

Response: The department agrees and has added commas before and after the phrase "but not limited to" in the definition.

Comment: Concerning proposed §295.32(87), one commenter recommended deleting the sentence "These tasks in a commercial building do not require accreditation."

Response: The department agrees and has deleted this sentence.

Comment: Concerning proposed §295.32(89), one commenter pointed out that not all ACBM is removed on many projects and suggested the following revision to the definition of "stop date": "the date that the project asbestos-containing building materials are removed from the."

Response: The department agrees and has made the appropriate change.

Comment: Concerning proposed §295.32(89)(B), one commenter requested clarification as to what was involved to obtain "final clearance."

Response: The department clarifies that final clearance is achieved when all the requirements are met in accordance with §295.58(i)(3). No change was made as the result of this comment.

Comment: Concerning proposed §295.32(91), one commenter recommended that the definition of "TEM" be reworded to parallel the definition of "PLM" by removing the word "the" before detection.

Response: The department agrees and has made the appropriate change.

Comment: Concerning proposed §295.32(92), one commenter recommended that the definition of "transportation of asbestos-containing material (ACM)" be modified to read "Moving asbestos materials from one site to another or from one site to an off-site storage facility or disposal site, but not to temporary storage or a staging area within the same site."

Response: The department agrees and has made appropriate changes to clarify the definition.

Comment: Concerning §295.33(a)(1), commenters attending the Asbestos Training Provider Seminar recommended the reference be changed to the National Emissions Standards for Hazardous Air Pollutants (Standard for Asbestos).

Response: The department disagrees. The reference is accurate and correct as written in this section. No change was made as the result of this comment.

Comment: Concerning §295.34(a), one commenter recommended the addition of a comma within the first paragraph after the word "work", to delineate a parenthetical expression.

Response: The department agrees and inserted a comma after the word "work."

Comment: Concerning §295.34(a), two commenters recommended the following wording: "building owners or operators shall ensure that all friable asbestos-containing material (ACM) inside the area of demolition or renovation or asbestos-containing materials which may become friable (e.g. Category II nonfriable ACM) within the area of demolition or renovation are inspected and abated in accordance with 40 CFR Part 61, Subpart M."

Response: The department believes that §295.34(a)(1) addresses what types of ACM must be removed and where by referencing 40 CFR Part 61, Subpart M. No change was made as the result of this comment.

Comment: Concerning §295.34(a)(2), one commenter suggested the addition of the words "and/or renovation" after the word "demolition" for clarity.

Response: The department agrees and has made the appropriate change.

Comment: Concerning §295.34(b), one commenter suggested that the word "and" be moved from the end of paragraph (4) to the end of (5).

Response: The department agrees and has made the appropriate change.

Comment: Concerning §295.34(b), several commenters suggested the department review the building owner's responsibility for violations.

Response: The department agrees and has added the word "primary" in front of the word "responsibility" and has deleted the phrase "and any violations that may occur" in §295.34(b)(5).

Comment: Concerning §295.34(b)(5)(C), one commenter expressed concern as to whether or not a general contractor would need to be licensed in order to oversee asbestos abatement projects.

Response: The department has tried to clarify this subsection to reflect that only contractors engaged in asbestos abatement activities as described in TAHPR are required to be licensed. A building owner does not need a license to hire or oversee a licensed person, or he would not be hiring them. Since the building owner has the authority to oversee his own projects, and he can delegate that authority to a general contractor, then the contractor would not need a license either. The department added a sentence to clarify that only contractors engaged in asbestos-related activities need to be licensed.

Comment: Concerning §295.34(c), one commenter suggested that the department should specify a report format to be used to document this survey and provide training to city administrators who are required to ensure that the survey conducted is thorough.

Response: The department disagrees and believes that this section is sufficiently specific to address this concern as it is presently written. No change was made as the result of this comment.

Comment: Concerning §295.34(c)(1), one commenter suggested deleting the third and fourth sentences of this paragraph and modifying the fifth sentence to read, "Under no circumstances will less than three samples for each suspect ACBM homogeneous area be collected."

Response: The department disagrees. This section is different from §295.58(h) in that it deals with how to determine homogenous areas and where to collect samples. Section 295.58(h) deals with how to collect samples. No change was made as the result of this comment.

Comment: Concerning §295.34(c)(1), one commenter suggested adding the following: "Under no circumstances, for purposes of rebutting the presence of ACBM, will less than three samples for each homogeneous area be collected. Reason: Addition of parenthetical expression for completeness and for consistency with §295.58(h). Three samples would not be required if the homogeneous area has already been identified as ACBM by positive PLM or TEM analysis of one or more samples of the homogeneous area."

Response: The department agrees and has made appropriate changes.

Comment: Concerning §295.34(c)(1) one commenter recommended changing "During the construction of a public building, a 'licensed inspector' to 'a person appropriately licensed'. Reason: Remains parallel reading to the change shown in the first sentence of the section."

Response: The department agrees and has made appropriate changes.

Comment: Concerning §295.34(c)(1), one commenter suggested rewording this section to say, "Under no circumstances will less than three samples for each suspect homogeneous area be collected."

Response: The department agrees and has made the change.

Comment: Concerning §295.34(c)(2), one commenter suggested adding the following sentence to this paragraph: "This person is not required to be licensed but must have the applicable discipline training under the AHERA Model Accreditation Plan."

Response: The department believes that this change does not add clarification to the paragraph. No change was made as a result of this comment.

Comment: Concerning §295.34(c)(4), one commenter suggested that asbestos surveys conducted prior to 1987 be required to be updated or approved by a licensed consultant, or that a cut-off date for when these surveys would still be acceptable be established.

Response: The department understands the commenter's concerns and believes that if the survey accurately reflects the asbestos condition at the present time, it is sufficient. The department has deleted the phrase "in which a demolition or renovation project occurs" for further clarity.

Comment: Concerning §295.34(c)(4), one commenter suggested that the paragraph be revised to read as follows: "Asbestos surveys remain acceptable to the Department if the asbestos survey..."

Response: The department disagrees and believes that the suggested revision would add no further clarity to this paragraph. No change was made as a result of this comment.

Comment: Concerning §295.34(c)(4), one commenter suggested the following rewording for the survey " Asbestos surveys remain acceptable if the asbestos survey was done in compliance with the Texas Asbestos Health Protection Rules (TAHPR) in effect at the time the asbestos survey was completed, and if the asbestos survey continues to represent accurately the suspect asbestos-containing building materials, location(s) of the materials surveyed, and any asbestos conditions in the building in which a demolition or renovation project occurs."

Response: The department agrees and has made appropriate changes. The department has deleted the phrase "in which a demolition or renovation project occurs" for further clarity.

Comment: Concerning §295.34(h), one commenter recommended adding the words "or consultant" after the words "management planner."

Response: The department agrees and has changed the section to reflect the commenter's suggestion.

Comment: Concerning §295.34(i), one commenter stated that this paragraph appears to be outside of the limitations of the original enabling legislation. The commenter said that in the last session of the legislature, there was a bill passed that forbids the installation of ACBM after 2001, but it clearly did not give enforcement power to the health department and suggested that the paragraph be deleted.

Response: The department disagrees. House Bill 1927, 77th Legislature, 2001, amends the Health and Safety Code, §161.406, which did give the department enforcement authority. No change was made as a result of this comment.

Comment: Concerning §295.34(i), one commenter suggested that the fines collected from House Bill (HB) 1927 should be transferred to the building owner to assist with abatement of newly installed asbestos.

Response: The department disagrees. The department has no authority to create funds for this purpose. No change was made as a result of this comment.

Comment: Concerning §295.34(i) and (j), one commenter stated the following: "These paragraphs could be construed as applying to new construction as well as to renovation. Does the prohibition apply to materials containing more than one percent 'encapsulated asbestos' or more than one percent 'chrysotile' according to the MSDS? Is a label on the container or package acceptable in lieu of an MSDS? These paragraphs apply to 'public buildings,' which by (38) means the 'interior space.' Why, therefore, are cooling towers, roofing shingles/tiles, roofing felts and calking/putties on the list?"

Response: These sections do apply to new construction as well as renovation. The prohibition applies to any building material containing more than one percent asbestos. The definition of asbestos includes chrysotile. A label on the container or package cannot be acceptable in lieu of an MSDS. The department recognizes that other materials may be included. Although most uses of roofing felts and shingles etc are typically on the exterior of the building, the use of those products on the inside of a building would be subject to the same requirements. No change was made as a result of this comment.

Comment: Concerning §295.34(i)(2), one commenter stated the following: "§295.34(i)(2) should consider the overall safety and financial impact of replacement gaskets for boiler doors not made of asbestos. The non-asbestos replacement gaskets are made of fibrous ceramics with questionable health effects, have a considerable cost, and are not proven. The risk of a potential boiler explosion resulting from this regulation change and the potential lives lost would greatly outweigh the risks from reinstalling asbestos gaskets properly. The addition of an exemption for boiler gaskets is appropriate. A cost benefit analysis for State Agencies and the State of Texas should be performed if DEPARTMENT does not exempt boiler gaskets."

Response: House Bill 1927, 77th Legislature, 2001, requires that a person may not install materials or replacement parts in a public building, if according to the MSDS, the material or parts contain more than 1% asbestos and there are alternative materials or parts. There is no provision for a cost benefit analysis. No change was made as a result of this comment.

Comment: Concerning §295.34(j), one commenter suggested that the department should avoid listing all building materials or replacement parts.

Response: The department was required by HB 1927, 77th Legislature, 2001, to designate materials or replacement parts for which a person must obtain a material safety data sheet before installing the materials or parts in a public building. The list is not all-inclusive. Other materials or parts may also be regulated. No change was made as a result of this comment.

Comment: Concerning §295.34(j), one commenter asked the following questions: 1. Does the Owner collect all the MSDS for a renovation project, then keep these under a separate file in case a department inspector requests them for review? 2. How long is the Owner required to keep these? 3. Will the MSDS take the place of having to perform a future survey if it can be shown that none of the materials contain asbestos in quantities greater than one percent? 4. If a material is used that is not on this list and is not suspected of containing asbestos, does it have to be sampled for asbestos content during an asbestos survey? 5. Do the regs also prohibit the installation of roofing products that contain asbestos, even though roofs are not covered by this regulation?

Response: 1. MSDS documents shall be retained in the same manner as an asbestos survey. 2. The owner must retain the material or replacement parts MSDS to supplement any other surveys of the building. 3. An MSDS for those materials and replacement parts serve the same purpose as an asbestos inspector's survey results. If the owner wishes to dispose of an MSDS, then prior to any renovation or demolition, a survey of all building materials that are suspect would have to be performed. Without the MSDS to prove that the building material did not contain asbestos, the material would be suspect and would require a survey. Unless the building owner wishes to repeat a survey, it is advisable to keep the survey up-to-date by amending it with any operations and maintenance, renovations, or demolitions of the building, affecting the known or presumed areas of asbestos containing material. So, in short, there is no requirement to keep MSDSs or asbestos surveys, except for schools; however, with them the building owner will have to repeat those surveys each time he does any work affecting those materials. 4. The department understands the commenter's concern that the list of materials requiring an MSDS may not be comprehensive and therefore has added the words "including but not limited to" before the list. The licensed inspector, architect or engineer should be familiar with what types of building materials typically contain asbestos and therefore which materials are suspect. The list includes the most common types of materials that have contained asbestos. 5. The regulations would prohibit the installation of roofing products that contain asbestos greater than one percent installed in the interior of a building. Materials installed in areas of the building that don't meet the definition of the public building are exempt. The list is intended to describe and designate the materials for which an MSDS must be obtained. No change was made as a result of this comment.

Comment: Concerning §295.34(j)(3)(X), one commenter identified an error in the spelling of the word.

Response: The department agrees and has corrected the spelling of the word as follows: "caulking."

Comment: Concerning §295.34(j)(3)(Z), one commenter recommended that the item be changed from "wallboard" to "sheetrock or gypsum board."

Response: The department disagrees and believes that the suggested changes provide no further clarity to the item. No change was made as a result of this comment.

Comment: Concerning §295.34(k), a staff member asked how this provision dovetails with variance procedures of §295.60 in which the program may grant a variance and whether the exemption applies only to cities.

Response: The variance/exemption allowed under this section is different from that allowed under §295.60. Under §295.60(a)(2), a Certified Industrial Hygienist or a Professional Engineer may apply to employ an alternative control method that differs from those prescribed in 29 CFR §1926.1101, which is an OSHA regulation. The variance allowed there is a one-time variance from the OSHA requirements applied to abatements in a public building. The variance under §295.34(k) is from the requirements of the National Emission Standard for Hazardous Air Pollutants (NESHAP) in a facility. This section was added to incorporate the requirements of House Bill 2844, 77th Legislature, 2001. The purpose of this legislation was to allow entities to get approval from the board if they had received an exemption from EPA from the provisions of NESHAP in order to test a new method or meet other criteria. This testing procedure is allowed under an EPA program that allows an entity to try new and innovative methods. If the testing procedure is successful under the EPA program, it receives approval such that the method becomes available to everyone to employ without a need for any further variance. However, without the state approval to vary from the requirements in the NESHAP, the entity would not be able to test the new method without being in violation of the Texas regulations concerning asbestos abatement. The original impetus for House Bill 2844 was for the City of Fort Worth to test a demolition method for which they had received a variance from EPA but could not obtain one from the department because there was no allowance for such a variance to be granted under the former law. However, entities other than cities can apply to the department for an exemption. No change was made as a result of this comment.

Comment: One commenter asked if the requirement for municipalities to verify that a survey has been done was included.

Response: The department has added the language verbatim from Senate Bill 509, 77th Legislature, 2001, under §295.34(l).

Comment: Concerning §295.36, one commenter suggested that the department only add the changes, which were required in House Bill 1279, 77th Legislature, 2001 and delete confusing terminology in (a)(1).

Response: The department agrees in part and has deleted §295.36(a)(1). Other changes not inconsistent with HB 1279 have been retained.

Comment: Concerning §295.36(a), one commenter suggested deleting most if not all of the paragraphs under this subsection because they review the RFCI recommended work practices referenced elsewhere in the rules and have no additive value.

Response: The department disagrees. These paragraphs better clarify when RFCI can be used in accordance with EPA guidance and when the exemption is lost. No change was made as a result of this comment.

Comment: Concerning proposed §295.36(a)(1), one commenter stated that the department should leave in the requirement to analyze because the floor tile should be tested prior to being removed.

Response: The department disagrees. The requirement to analyze has been removed to be consistent with the intent of House Bill 79, 77th Legislature, 2001. No change was made as a result of this comment.

Comment: Concerning proposed §295.36(a)(1), several commenters expressed concern over the wording of this paragraph.

Response: The department has removed this paragraph.

Comment: Concerning proposed §295.36(a)(1)-(7), one commenter inquired as to "What scientific evidence does the department have that shows that these methods meet 29 CFR §1926.1101 standards for the protection of worker and public health?"

Response: The department clarifies that the "Environ studies" commissioned by the Resilient Floor Covering Institute (RFCI) were presented by RFCI to OSHA as evidence that the recommended work practices met the worker permissible exposure limit standard. No change was made as a result of this comment.

Comment: Concerning proposed §295.36(a)(2), one commenter stated the following: "All resilient flooring materials are cut to fit when installed. Many are drilled through and abraded while in use. Therefore, this paragraph means that all installed resilient flooring materials must be abated by licensed persons."

Response: The department has amended (a)(2) and (a)(1) to clarify that the only prohibited cutting would be sawing. No change was made as a result of this comment.

Comment: Concerning proposed §295.36(a)(4), one commenter suggested that this paragraph read as follows: "all those engaged in removal of resilient floor coverings shall have received training in an eight-hour course for workers and twelve-hours for supervisors which covers the elements described in the document titled, 'Recommended Work Practices for the Removal of Resilient Floor Coverings,' published by the RFCI in 1998."

Response: The Texas Asbestos statute does not require the additional four hours of RFCI training for supervisors. No change was made as a result of this comment.

Comment: Concerning proposed §295.36(a)(5), one commenter suggested that this paragraph read as follows: "employees of schools (kindergarten through 12th grade) who elect to use this exempt method must first complete the 16-hour custodial training, as required by federal regulations adopted under authority of the Asbestos Hazard Emergency Response Act of 1986 (AHERA). In addition, the worker will receive 8 hours of RFCI training and the Supervisor will receive 12 hours of RFCI training."

Response: The department agrees and has added "in addition to the training in §295.36(a)(3)" to the beginning of the paragraph to incorporate the training requirement.

Comment: Concerning §295.36(c), two commenters suggested that the language of this paragraph read as it did prior to the proposed rule changes.

Response: The department disagrees. This section was modified in accordance with House Bill 1279, 77th Legislature, 2001. As a result of this modification, the penalties specified in §295.70 apply. No change was made as a result of this comment.

Comment: Concerning §295.36(c), one commenter inquired as to whether it is the department's intent to treat any noncompliance with the §295.36(a)(1)-(6) as Severity Level III violations, or will the department retain the flexibility to assign an appropriate Severity Level in accordance with §295.70?

Response: The department responds that appropriate penalties will be assigned in accordance with §295.70. No change was made as a result of this comment.

Comment: Concerning §295.37, one commenter stated that from its perspective, Errors and Omissions E&O insurance coverage is an absolute necessity to participate in an abatement project.

Response: The department agrees that persons should not be engaged in any asbestos-related activities in which they are neither licensed to perform nor covered by their E&O (Errors and Omissions insurance). No change was made as a result of this comment.

Comment: Concerning §295.37(b), three commenters suggested that language be added to paragraphs (1) and (2) of this subsection to resolve a possible inconsistency in the rules regarding conflict of interest.

Response: The department agrees and has made the appropriate changes to paragraph (1) of this subsection.

Comment: Concerning §295.37(b)(4), one commenter stated that the department should consider the addition of state agencies and the associated cost savings to the state of Texas in this paragraph.

Response: The department disagrees. State agencies are not municipalities. The Texas Asbestos Health Protection Act exempts only municipalities. No change was made as a result of this comment.

Comment: Concerning §295.37(c), one commenter suggested additional language in order to resolve the conflict of interest that arises when staff or payroll employees of the owner conduct these activities rather than independent contract professionals.

Response: The department disagrees and believes that the suggested wording would be more limiting. No change was made as a result of this comment.

Comment: Concerning §295.38, several commenters suggested replacing the new fee amounts with the fee amounts that were in place prior to the proposed rule changes.

Response: The department disagrees. This section was modified due to a revision of the Texas Asbestos Health Protection Act (TAHPA), article 4477-3a, Tx. Civ. Stat. Ann. No change was made as a result of this comment.

Comment: Concerning §295.38(e)(1), one commenter suggested a decrease in the time allowed by the department to notify an applicant of deficiencies and to issue licenses.

Response: The department disagrees. The department is consistently under these timeframes to issue licenses once all information is received or to seek additional information from those applicants with packages lacking information. The department understands the concerns expressed in the comment and that the customer wants the license or the information concerning the deficiencies in the shortest timeframe possible and the department makes every effort to provide the quickest turn around possible. No change was made as a result of this comment.

Comment: Concerning §295.41(e), one commenter suggested a decrease in the time allowed by the department to notify examinees of their test scores.

Response: The department disagrees but understands the commenter's concerns. The time specified within the rules is the maximum time allowed for reporting scores. No change was made as a result of this comment.

Comment: Concerning §295.41(g), one commenter stated that it would be appropriate to allow the training provider to have access to a student's exam failure information to help prepare this student for a re-test and suggested that additional wording be added to the section for this purpose.

Response: The department appreciates the commenter's suggestion. Under the proposed rule in §295.41(g), only the student failing the exam may request the analysis of his performance on the exam. The instructor may obtain the information from the student. No change was made as a result of this comment.

Comment: Concerning §295.41(h), one commenter suggested that a subsection describing the licensure of testing services and the application process to become a testing service should be added to this section.

Response: The department does not currently utilize a testing service for examination scoring or reporting. This section was added due to a revision of the Texas Asbestos Health Protection Act (TAHPA), article 4477-3a, Tx. Civ. Stat. Ann. No change was made as a result of this comment.

Comment: Concerning §295.41(h)(2), one commenter expressed concern regarding a delay in the reporting of exam results if a third-party testing service is used.

Response: The department does not currently utilize a testing service for examination scoring or reporting. This section was modified due to a revision of the Texas Asbestos Health Protection Act (TAHPA), article 4477-3a, Tx. Civ. Stat. Ann. If the department does use a testing service in the future, notification of delay would be made by the 14th day. If notice of the exam results will be delayed longer than 90 days after the examination date, the department shall notify the person of the reason for the delay before the 90th day. No change was made as a result of this comment.

Comment: Concerning §295.42(a), one commenter suggested not changing this subsection.

Response: The department believes that the responsibility for requiring all employees who will be transporting, loading and unloading asbestos belongs to the transporter in accordance with 49 CFR, Parts 171-177. No change was made as a result of this comment.

Comment: Concerning §§295.42(e)(4), 295.43(e)(18), 295.44(d)(4), 295.45(e)(20), 295.46(d)(5), 295.47(f)(5), 295.49(d)(5), 295.50(d)(6), 295.51(e)(5), 295.52(e)(5) and 295.65(f)(4), several commenters expressed concern regarding the department's requirement for a white background on photographs submitted for licensing purposes.

Response: The department is experiencing significant difficulty in scanning photographs with backgrounds other than white. No changes were made as a result of these comments.

Comment: Concerning §§295.46 and 295.49, one commenter stated that licensed asbestos Project Managers and licensed asbestos Abatement Supervisors should be cited in situations where responsibilities to the building owner have not been met, as opposed to the department's citing either the licensed asbestos Consultant/Consulting Agency or licensed asbestos Abatement Contractor for these types of violations.

Response: The department disagrees and believes that agencies are primarily responsible for their employees' actions where responsibilities to the building owner have not been met. While the department reserves the option to cite a supervisor or individual consultant, the department believes that higher quality service will be afforded to the public from companies that have liabilities associated with the quality of work provided by their employees. No change was made as a result of this comment.

Comment: Concerning §§295.47(a)(1) and 295.60(a)(2), one commenter stated the following: "Sections 295.47 and 295.60 address alternative controls that can be designed. The sentence states '...by a Certified Industrial Hygienist (CIH) or a Professional Engineer (PE)...' This should be changed to '...by a Certified Industrial Hygienist (CIH) or a licensed Professional Engineer, licensed in Texas...' The reason for the change is to comply with the provisions of the Texas Engineering Practices Act.".

Response: The department agrees and has modified the sections accordingly.

Comment: Concerning §295.47, two commenters suggested that there is confusion surrounding the responsibilities of those persons hired to manage the abatement project, which may include much more than abatement. The Asbestos Consulting Agency was never considered to be a person but rather an organization. This confusion has created a serious problem in that the department is citing consulting agencies for the transgressions of the individual licensees that they employ rather than the licensees who are on the job. To fix this problem the commenter suggested that the sentence '...building owner or building owner's agent to perform asbestos project management.' be changed to '...building owner or building owner's agent to perform as an Licensed Asbestos Project manager' and 'If performing asbestos project management, the consultant is...' be changed to 'A licensed Asbestos Consultant working on site as a licensed Asbestos Project Manager is responsible to perform the duties assigned to a licensed Asbestos Project Manager '."

Response: The department disagrees and believes that agencies are responsible for their employees' actions as required in §295.48(f). The department believes the use of the words "asbestos project management" applies to the oversight of asbestos related activities of the asbestos contractor to ensure his actions are consistent with the requirements in the contract and in the asbestos laws. No change was made as a result of this comment.

Comment: Concerning §295.47(a)(1), one commenter stated the following: "According to OSHA the said methods above are not even mentioned in the regulations. The OSHA statements are clear, if any other method except those stated in the regulations for removal of Class I work, then a CIH or PE must sign off on the procedures or plan. The department should follow this rule and mandate that any alternative method from the department and OSHA requirements requires a CIH or PE signature. The PE or CIH could be exempted from the department license, however, he or she should be accredited as an asbestos project designer."

Response: The department understands the commenter's concerns and believes that this section addresses these concerns as it is written. No change was made as a result of this comment.

Comment: Concerning §295.47(a)(1), one commenter stated the following: "The department should define the term 'ensure'. What is the department's intent should the Licensed Asbestos Contractor (LAC), Licensed Asbestos Abatement Supervisor (LAAS), or the Asbestos Abatement Workers (AAW) decide to not follow 'proper procedures'? Does the department require the consultant to physically force the LAC, LAAS and/or the AAW to follow proper procedures? Does the department require the consultant to buy or purchase or otherwise obtain such things as Gucci's if the LAC/LAAS/AAW did not bring them to the asbestos abatement site? If the department requires the consultant to buy or purchase such things as Gucci's, does the department have a requirement specifying how the consultant is to be reimbursed for these items? Lastly, is there a time period in which the consultant is required to act when proper procedures are violated to 'ensure proper procedures' are followed?"

Response: The department expects that the consultant will represent the owner's interests by directing the contractor to correct deficiencies and document deficiencies not corrected. If deficiencies are not corrected, the consultant should report this to the building owner. If the deficiencies are not reconciled by the building owner the consultant is required by §295.35(f) to report the violation to the department. No change was made as a result of this comment.

Comment: Concerning §295.47(a)(1), one commenter suggested modifying the last sentence of this paragraph to read "10 working days."

Response: The department believes that the time limit specified in the rules is appropriate. No change was made as a result of this comment.

Comment: Concerning §295.47(a)(1), one commenter questioned what was meant by "every day of the project" and suggested alternative wording.

Response: The department agrees and has changed the language to "...to be employed at any time during the asbestos abatement activity..."

Comment: Concerning §295.47(a)(1), one commenter stated that a sentence requiring the department to respond to a request for an alternative control method within 30 days should be added to this section.

Response: The department has reworded the section for clarity and to address the commenter's concern.

Comment: Concerning §295.47(a)(1), one commenter stated the following: "It appears from this statement that Alternative Control Methods do not have to be approved by a licensed Asbestos Consultant. The review and approval can come from any CIH or any PE? What type of PE? It does not even say that it has to be by a CIH or PE that has any asbestos experience. I know it also has to be approved by the Chief, but what is the purpose of an Asbestos Consultant providing the design, a CIH or PE reviews and approves, and then going to the Chief. It seems like we could eliminate the CIH and PE and go straight from the Asbestos Consultant to the Chief. If we do not receive department approval or denial within 30 days, what recourse do we have?"

Response: Subsection §295.47(a) requires a licensed asbestos consultant to design the asbestos abatement project to include any alternative methods. Any PE who has the qualifications and experience as required by the Texas Board of Professional Engineers may make the certification. The requirement for a PE or CIH to make the certification must remain. It is a requirement in 29 CFR §1926.1101. If the department requires additional time to determine the viability of an alternative method because additional data is required, the application will be denied pending receipt of the additional data. No change was made as a result of this comment.

Comment: Concerning §§295.32(18) and 295.47(a)(1), one commenter suggested that language requiring the licensed asbestos consultant to be on-site during project start-up be included as part of the building owner's responsibilities under §295.34(b) so there is no question that it is a project requirement.

Response: The department believes that the consultant or project manager must be on-site for preparation as required in §295.49(e). No change was made as a result of this comment.

Comment: Concerning §§295.32(18) and 295.47(a)(1), one commenter stated the following: "The inclusion of the phrase 'every day of the project, from the start through the completion dates' in §§295.47(a)(1) and 295.32(18) is overly burdensome and puts the Licensed Asbestos Consultant (LAC) in an impossible position of having to be on site at all times during the project...If the department feels a LAC must be on site all the time then they should make it a requirement of the building owners so that the competitive economic issues become irrelevant."

Response: The department believes that the consultant is not required to be on the site at all times during the project. However, the consultant's project manager is required to be there as specified in §295.49(e). No change was made as a result of this comment. Comment: Concerning §295.51(e)(8), one commenter suggested that the subsection be reworded as follows: "...for Management Planners who also provide surveying services, a physician's statement of the required physical examination done within the past year as described in §295.42(e)(2) of this...".

Response: The department believes that it is prudent to require physicals for all licensees involved in asbestos abatement activities where there is a potential for exposure to airborne asbestos fibers. No change was made as a result of this comment.

Comment: Concerning §295.52(a), one commenter stated the following: "As it now reads a LAMT has to be employed by an abatement or O&M contractor to take personal samples. Obviously a LAMT working for an ACA should be allowed to take personal samples also. How else is the LAPM or LAC to know if the LAAC is following the specifications and the regulations?"

Response: The department believes the consultant's responsibility for overseeing air monitoring should be focused on baseline, area and clearance sampling. No change was made as a result of this comment.

Comment: Concerning §295.52(e)(7), one commenter recommended the following change to this paragraph: "...proof of performing air monitoring as an apprentice for 30 days 10 working days of work under the direct supervision of a licensed air monitor technician working for a licensed laboratory or contractor or a licensed consultant."

Response: The department disagrees. The department feels that 30 days of experience is the minimum required to become sufficiently familiar with the requirements of the job to be able to perform that work without supervision. No change was made as a result of this comment.

Comment: Concerning §295.55(d)(7)(B), one commenter suggested that "and being in the room but not engaged in the course in the judgment of the instructor" be deleted from the subparagraph.

Response: The department agrees and has deleted this phrase.

Comment: Concerning §295.55(d)(7)(C), one commenter stated the following: "The state licensing exam must be failed three times before the training course must be repeated. The proposed rule revision is clearly a double standard. Examinations and re-examinations and the policies for administering them are best left to the professional trainer. Often the composition of the class, the backgrounds of the students, and the reason the student is in the class impact learning abilities. This manifests itself in the exam at the end of the course. The trainer requires the ability to assess the situation and adjust the training and the testing. The proposed revisions are ill conceived, too restrictive, and inappropriate. All of this paragraph after the first sentence should be struck from the rule."

Response: The department disagrees and believes that the initial examination and two reexaminations are sufficient. No change was made as a result of this comment.

Comment: Concerning §295.55(e)(1), one commenter suggested that the sentence deleted from this paragraph in the proposed rule be restored or revised.

Response: The department agrees that removing the sentence allows for more meetings and has added the following statement to the end of the paragraph: "There will be no more than two such meetings per year."

Comment: Concerning §295.55(e)(2), two commenters expressed concern regarding the 14 working day notice requirement for course schedules.

Response: The department understands the commenters' concerns and has changed "working" days to "calendar" days.

Comment: Concerning §295.55(e)(2), one commenter expressed concern regarding the 72-hour course cancellation policy.

Response: The department understands the commenter's concern; however, the department needs this time to schedule audits of the training courses. No change was made as a result of this comment.

Comment: Concerning §295.55(f), one commenter expressed concern regarding the 15 working days notice of additions and deletions to the instructor roster.

Response: The department disagrees. The proposed language is intended to benefit the training provider by providing additional time for the submission of course instructors and guest speakers for approval. No change was made as a result of this comment.

Comment: Concerning §295.58(b)(3), two commenters expressed concern over the amount of time that the supervisor is required to be in containment.

Response: The department agrees and has made the appropriate changes.

Comment: Concerning §295.58(f), one commenter stated that the subsection reads as though every worker, supervisor and individual on site must have a respiratory program on site.

Response: The department agrees and has made the appropriate changes.

Comment: Concerning §295.58(f), one commenter stated the title of this subsection would be more appropriately titled "Respiratory Protection Program."

Response: The department agrees and has made the appropriate change.

Comment: Concerning §295.58(f), two commenters expressed concern over the respiratory program requirements within this section as they compare to the OSHA requirements.

Response: The department agrees and has deleted the third sentence in this subsection.

Comment: Concerning §295.58(g), two commenters stated that this subsection needs language to require the workers to be responsible for wearing the assigned respirator whenever they are inside a regulated area.

Response: The department addresses this concern in the last sentence of §295.58(f). No change was made as a result of this comment.

Comment: Concerning §295.58(h), two commenters recommended that the subsection read as follows: "Bulk samples taken by a licensed abatement supervisor or through a survey performed by a licensed asbestos inspector....".

Response: The department believes that no change is required. The TAHPR do not allow licensed supervisors to collect samples. No change was made as a result of this comment.

Comment: Concerning §295.58(h), one commenter stated the following: "In §295.34(c)(1), the sampling requirement is an absolute -samples of each homogeneous area. Paragraph (h) above addresses suspect materials, which is a sub-set of homogeneous areas. This is clearly less restrictive than §295.34 and in conflict with that part of the rule. Additionally, §295.34(c)(I) requires absolutely that 3 samples of each material be collected. Subsection (h) requires three samples only if the sampling is for the purpose of refuting the presumption of ACBM and in fact the material is not ACBM. These two conflicts need to be resolved before this rule change is ratified. Suggest that sampling activities and protocols be consolidated into only one location for public buildings. This location is the right location for Public Buildings, and delete any reference to sampling activities from §295.34(c)(I)."

Response: The commenter is correct that three samples must be collected in accordance with §295.34(c)(i). Section 295.58(h) has been reworded to indicate that three samples must be analyzed to refute the presence of ACM.

Comment: Concerning §295.58(h), one commenter suggested that paragraph (3) read as follows to clarify the intent of the rule: "(3) Each sample analyzed by visual PLM as greater than one percent asbestos is regarded as ACBM, unless that homogenous material sample result is rebutted through additional analysis (i.e. point counting). A minimum of one additional analysis is required."

Response: The requirement to rebut the presence of ACM is meant to determine whether or not suspect building material contains asbestos. The sentence order within subsection (h) has been modified to clearly indicate this intent.

Comment: Concerning §295.58(h), one commenter posed the following questions: "Is an owner allowed to treat a material as ACBM without sampling and analysis? If one sample is sufficient to confirm a material as ACBM, must two more samples still be collected? If so, must they be analyzed?"

Response: An owner may treat building material as ACBM without sampling. One sample analysis that confirms the presence of asbestos in the material that is greater than 1% is sufficient and no further analysis is necessary. The rule requires that three samples of each homogeneous area be collected. No change was made as a result of this comment.

Comment: Concerning §295.58(h)(1), one commenter stated that this "...sentence permits composite analysis of samples from non-public buildings, despite the fact that such a practice is prohibited by OSHA."

Response: Composite analysis of samples from non-public buildings is permitted by EPA in NESHAP and AHERA. No change was made as a result of this comment.

Comment: Concerning §295.58(h)(2), one commenter stated the following: "PLM analysis of non-friable, organically-bound (NOB) materials, such as floor tile and some mastics, produces results that are 'inconclusive' if negative. Time and money can be saved by going directly to TEM/gravimetric analysis. Is PLM analysis still required if samples are going to be analyzed by TEM regardless?"

Response: No, TEM/gravimetric analysis would suffice. The department agrees and has made appropriate changes.

Comment: Concerning §§295.34(g) and 295.58(i), one commenter expressed concern regarding the contradiction between the subsections on project monitoring and mandatory abatement project design as they pertain to threshold amounts.

Response: The department believes these sections are consistent with the state of the practice in the industry. No change was made as a result of this comment.

Comment: Concerning §295.58(i), one commenter suggested the following: "Change last sentence to 'Only one cassette may be placed on a personal sampling pump at a time.' Calibration data that I submitted to the department on December 18, 2001 clearly showed that accurate flow can be maintained through two cassettes placed on a high-volume sampling pump when a critical orifice is used for flow control."

Response: The department recognizes the NIOSH 7400 method, which allows only one cassette per pump. No change was made as a result of this comment.

Comment: Concerning §295.58(i)(2), one commenter suggested adding specific language to delineate ambient monitoring only during work that actually disturbs asbestos-containing materials.

Response: The department agrees and has made appropriate changes.

Comment: Concerning §295.58(k)(1), one commenter was concerned about the department's intent concerning the use of the term "medical exam". The requirement should be that "The licensed asbestos abatement contractor (LAAC) has the responsibility to provide the LAPM a copy of the physician's written opinion and respirator fit-test for each of their employees that intend to enter the Regulated Area. The licensed asbestos program manager (LAPM) shall maintain the same records for those employees employed by the ACA he works for who also intend to enter the Regulated Area. Any other employer who intends to have their employees enter a Regulated Area must provide the same information to the LAPM. The LAPM has the responsibility to notify a person's employer, in writing, any time an unauthorized person enters a Regulated Area."

Response: The department believes that the requirement for the documents to be on-site is sufficient. The requirement for a physical exam has been changed to "Physician's Written Statement."

Comment: Concerning §295.58(i)(3)(D), one commenter suggested that requiring the licensed asbestos consultant (LAC) to conduct clearance visual inspections on all jobs is not required by the current regulations and consequently, not a realistic expectation under the current business conditions and, in many cases, may not be warranted. The commenter also suggested that DEPARTMENT allow the requirement for "writing" to be satisfied if done so in the project specifications or contract documents. There is no need for an extra letter.

Response: The requirement for visual inspection is in §295.58(i)(3)(B). Specifications may include written authorization as the commenter suggests. No change was made as a result of this comment.

Comment: Concerning §295.58(i)(3)(F), one commenter stated the following: "This requirement is totally out of the question. The department has a requirement of each individual to be licensed in each discipline of asbestos and each discipline has their requirement for obtaining each license. Therefore, each individual should be responsible for obtaining and maintaining their individual license requirements. The consultant should not be held responsible for the mistake of someone else."

Response: The subparagraph referred to in the comment does not exist. Furthermore, the department could not find a proposed rule in sections relating to consultants or consultant agencies that matched the commenter's statement and is therefore unable to address the comment. No change was made as a result of this comment.

Comment: Concerning §295.58(k)(1), three commenters expressed concern regarding the requirement to collect samples "every day" of the project and confusion over what ambient samples were.

Response: The department understands the commenter's concerns and has addressed them with new language and samples required per §295.58(i)(2)(A) which requires ambient samples to be collected every day of asbestos abatement activity. Since asbestos abatement activity as defined in §295.32(10) covers teardown, air monitoring is required since there is still a possibility for asbestos to be disturbed if the abatement caused ACM to be deposited in areas outside of the containment. Ambient samples are explained in §295.58(i) and include samples collected outside of the regulated area.

Comment: Concerning §295.58(k)(1), one commenter indicated total disagreement with this requirement of the section. The commenter stated that the "...requirement is in conflict with §295.31(e), which mandates that anyone engaged in asbestos activities carry their license at all times. The same goes for anyone's driver's license. Therefore, the responsibility for having one's certification on-site should also be the individual licensee responsibility. Moreover, this requirement puts companies at the mercy of the workers who could intentionally forget their paper work or lose their paper work. This section needs to be left off. The responsibility of having proper documentation on one's possession is clearly defined in various sections of the department rules such as §§295.31(e), 295.35(c), 295.35(e), 295.35(f), 295.57(c), 295.58(c), and 295.58(d)."

Response: The department believes that companies must be responsible for the actions of their employees in this area. Companies may develop their own procedure to ensure compliance with this rule. No change was made as a result of this comment.

Comment: Concerning §295.58(k)(1), one commenter suggested that "Original accreditation certificates are most appropriately (and most often) stored in a safe place, not the abatement job site or asbestos inspection site. Only copies are made available on-site - and to the department for licensure. This paragraph should be modified to read (in part), '...registrations, and a copy of current accreditation certificates and current physical ...' Each accredited and licensed person is responsible for himself. The company for which he works is not a baby sitting service, and cannot force any individual employee to follow all of the rules all of the time. The company cannot be held responsible for educated, licensed and knowledgeable adults to be in compliance with rules of which they are annually advised. The individual needs to be held to a standard of accountability and the department should be knowledgeable enough to recognize appropriate accountability. Suggest that the second sentence of (k)(l) above be deleted as it is inappropriate."

Response: The department agrees and has allowed for copies of accreditation certificates, current "Physician's Written Statements" and current respirator fit-test records.

Comment: Concerning §295.59(b)(2), one commenter suggested the following: "Building owners and operators have many advisors and consultants. Paragraph (2) above should include the following wording: '...as determined by the licensed asbestos consultant, or appropriate governmental inspectors are allowed to enter the containment, decontamination, bag-out, and temporary storage areas.'"

Response: The department agrees and has made the appropriate changes to the paragraph.

Comment: Concerning §295.59(b)(8), two commenters expressed confusion regarding the term "asbestos-contaminated waste material."

Response: The department agrees and has changed this term to "asbestos-containing waste material" to add clarity.

Comment: Concerning §295.59(b)(8), one commenter asked, "Should this not read 'clear 6 mil bags' to be consistent with the department regulation §295.60(j)(1)? Is the department going to allow the use to the 2.2 mil disposal bags that meet the dart impact test?"

Response: The department agrees and has clarified that these bags should "meet the dart impact test as specified in §295.60(j)(1)."

Comment: Concerning §295.59(b)(8), one commenter suggested the following change: "'Asbestos shall be double bagged by placing...'"

Response: The department agrees and has made the appropriate change.

Comment: Concerning §295.60, one commenter stated that the department has not mentioned the use of burrito bags even though the term is used in the Asbestos Regulatory Clarifications.

Response: The department does not allow the use of burrito bags for removal of ACBM in public buildings. No change was made as a result of this comment.

Comment: Concerning §295.60(a), two commenters suggested that the regulations do not contain clear language that may prevent the Licensed Asbestos Abatement Contractor (LAAC) from beginning abatement activities without the Licensed Asbestos Consultant (LAC)/Accredited Asbestos Project Manager's (AAPM) approval. The two commenters suggested that the LLAC can force the abatement activities to start before the LAC/AAPM thinks they should and that there is little to prevent this from happening, especially without the owner's support. One commenter suggested the following change: "Abatement activities will not start until the LAC has provided the LAAC written approval to begin."

Response: The department believes that this issue can be resolved by adding provisions regarding the start of asbestos abatement activities to either the project specifications or the contract between the building owner and the contractor. No change was made as a result of this comment.

Comment: Concerning §295.60(a)(2), two commenters suggested that by deleting the PE or CIH from the section, the department would be promoting the violation of the OSHA standard by department-licensed consultants. One commenter stated that "the department should follow this rule and mandate that any alternative method from the department and OSHA requirements requires a CIH or PE signature and seal."

Response: The department believes that the entire paragraph is in agreement with the OSHA requirement and does not promote its violation. No change was made as a result of this comment.

Comment: Concerning §295.60(a)(2), three commenters believed that if the department were to remove this, they would be promoting the violation of the OSHA standard by department licensed consultants. The OSHA statements are clear, if any other method except those stated in the regulations, then a CIH or PE must sign off on the procedures or plan. The department should follow this rule and mandate that any alternative method from the department and OSHA requirements requires a CIH or PE signature and seal. The PE or CIH does not have to be licensed, however, he or she should be accredited as an asbestos project designer. Moreover, the statement in the regulations should also read that if any safety system is disturbed such as fireproofing or fire rated ceiling tiles, it should be designed by a PE. Many a times consultants remove ACM ceiling tiles that were installed to protect students from fire hazards, but nothing is noted to replace tiles with the same type of protection. The department is being less stringent than OSHA if this requirement is removed. The OSHA statements are clear, if any other method except those stated in the regulations for removal of Class I work, then a CIH or PE must sign off on the procedures or plan. The department should follow this rule and mandate that any alternative method from the department and OSHA requirements requires a CIH or PE signature and seal. The PE or CIH could be exempted from the department license, however he or she should be accredited as an asbestos project designer. Moreover, the statement in the regulations should also read that if any safety system is disturbed such as fireproofing or fire rated ceiling tiles, it should be designed by a PE.

Response: The department believes that the requirement of a consultant to be a P.E. or C.I.H. in order to specify alternative control methods to this rule is too restrictive. 29 CFR §1926.1101(g)(6) delineates additional work practices from those minimum requirements in 295.60(a). By removing this requirement, a broader scope of knowledge is available to determine the viability of the alternative methods to these rules. However, if alternative control methods to those spelled out in 29 CFR §1926.1101(g)(6) are to be used, then the rule still requires that a PE or CIH review and certify them before submitting to the Chief of the Asbestos Programs Branch for approval. As to the suggestion that the PE or CIH be accredited, there is no such requirement in the Model Accreditation Plan (MAP) or in 29 CFR §1926.1101(g)(6) and the department sees no reason to be more restrictive. As to the suggestion that if any safety system is disturbed, it should be designed by a PE, the department feels that this is beyond the scope of the asbestos rules. No change was made as a result of this comment.

Comment: Concerning §295.60(a)(2), one commenter asked, "In as much as the project notification is prepared and submitted by the abatement contractor, how can the asbestos consultant ensure that the department receives sufficient information in the notification to meet the 'burden of proof' imposed on him?"

Response: The department recommends that the consultant review the notification before it is sent. No change was made as a result of this comment.

Comment: Concerning §295.60(a)(2), one commenter suggested the following: "It appears from this statement that Alternative Control Methods do not have to be approved by a licensed Asbestos Consultant. The review and approval can come from any CIH or any PE? What type of PE? It does not even say that it has to be by a CIH or PE that has any asbestos experience. I know it also has to be approved by the Chief, but what is the purpose of an Asbestos Consultant providing the design, a CIH or PE reviews and approves, and then going to the Chief. It seems like we could eliminate the CIH and PE and go straight from the Asbestos Consultant to the Chief. If we do not receive department approval or denial within 30 days, what recourse do we have?"

Response: Section 295.47(a) requires a licensed asbestos consultant to design the asbestos abatement project to include any alternative methods. Any PE who has the qualifications and experience as required by the Texas Board of Professional Engineers may make the certification. The requirement for a PE or CIH to make the certification must remain. It is a requirement in 29 CFR §1926.1101. If the department requires additional time to determine the viability of an alternative method because additional data is required, the application will be denied pending receipt of the additional data. No change was made as a result of this comment.

Comment: Concerning §295.60(a)(4), two commenters stated that neither the enabling legislation nor the regulations provide anyone on an asbestos abatement project with police powers. "A licensed asbestos project manager LAPM has no legal authority to force anyone on the job site to do anything. Unless the department changes the law and regulations to so empower the LAPM and then protect the LAPM from liabilities associated with preventing anyone from entering a Regulated Area, then the department should not require potentially libelous acts on part of the LAPM. This requirement should be struck from the proposed rule in its entirety."

Response: The department believes that the consultant should make reasonable efforts to require compliance with the regulations and specifications and represent the building owner's interest in accordance with §295.47(h). The consultant should report contractor non-compliance to the building owner and/or department as appropriate. No change was made as a result of this comment.

Comment: Concerning §295.60(a)(4), one commenter suggested that on construction projects there are many advisors and consultants. "Paragraph (a)(4) above should include the following wording: '...as determined by the licensed asbestos consultant, or governmental...'".

Response: The department agrees and has changed the paragraph to read "...as determined by the consultant, or appropriate governmental inspectors are allowed to enter the containment, decontamination, bag-out, and temporary storage areas."

Comment: Concerning §295.60(e), one commenter asked, "who is the contractor?" The commenter suggested the section should read, "The Licensed Asbestos Abatement Supervisor shall...".

Response: The department believes that the abatement contractor is responsible for ensuring that all workers properly decontaminate, and the department has made the appropriate changes. The abatement contractor's supervisor is the contractor's on-site representative responsible to his employer to ensure compliance.

Comment: Concerning §295.60(e), one commenter stated the following: "The contractor company can only exercise direct control over the 'competent person' supervisor. The supervisor is responsible for the workers and their safety at the job-site. This paragraph stops short of addressing direct, on-site control and license accountability. It should include the following: 'The contractor's supervisors shall ensure that all of the contractor's employees:'"

Response: The department believes that the supervisor is the abatement contractor's representative; therefore, he acts as directed by the abatement contractor. No change was made as a result of this comment.

Comment: Concerning §295.60(h), one commenter stated that HEPA vacuums need to be on site at all times that the contractor is on-site. "Preparation work may inadvertently disturb ACBM. Tear-down and final clean-up after final air clearance may uncover hidden ACBM." The commenter suggested that the paragraph should be further revised to include: "A working HEPA vacuum shall remain on-site every day of the project, from the start of preparation at the job site and through the final tear-down and removal of all material, ACBM waste and debris of the project, and the unit ...".

Response: The department understands the commenter's concerns and has made the appropriate changes.

Comment: Concerning §295.60(j), one commenter suggested the following: "an additional...section allowing the removal of ACBM directly to plastic lined roll-off box(es), and or dumpsters under negative pressure should be allowed for major wing or building renovations while no other space within that regulated area remains occupied." The commenter also suggested that a cost and benefit analysis for State Agencies and the State of Texas should be performed by the department if such cost savings while protecting public health is not allowed during these regulation changes.

Response: The department disagrees and believes that the section is appropriately written to protect public health and safety. No change was made as a result of this comment.

Comment: Concerning §295.60(j)(1), one commenter indicated that only the bags or other containers are labeled, not the ACBM. The commenter suggested that the sentence should be modified to read as "... other handling; the bags (or other suitable containers) of ACBM shall be marked per the applicable..." .

Response: The department agrees and has made the appropriate changes.

Comment: Concerning §295.60(j)(1), one commenter suggested the following change "...(NESHAP regulations and double bagged by placing..." in order to correct the spelling.

Response: The department agrees and has replaced the word "doubled" with the word "double."

Comment: Concerning §295.60(j)(1), one commenter asked, "Does the 'double-bagging' requirement apply only to the removed ACBM or does it also apply to contaminated items such as disposable clothing and plastic sheeting used to construct the containment and decon/load-out?"

Response: The department believes that the requirement does apply to these items since they are asbestos-contaminated material. No change was made as a result of this comment.

Comment: Concerning §295.60(j)(1), one commenter indicated that the department did not make any mention as to the use of the term "burrito bag" in the rule changes although the department has used the term in the Asbestos Rules Clarifications.

Response: The department does not allow the use of "burrito bags" for the removal of asbestos-containing building materials in public buildings. No change was made as a result of this comment.

Comment: Concerning §295.60(j)(2), one commenter suggested that requiring a plastic bag to be squeezed to remove the air is an inappropriate direction from the regulating agency. The commenter stated that it certainly allows for increased airborne fiber[ s ] and allows for the increased potential for damaging to bag and harm to the contractor's employee who follows this direction literally. "The term 'squeezed out', which is used twice in paragraph (j)(2) should be replaced with 'evacuated', as it is taught in the MAP training courses."

Response: The department agrees and has incorporated the appropriate change.

Comment: Concerning §295.60(j)(2)-(6), one commenter stated that his specification requires that these operations be done in a load-out attached to the containment. "The load-out is under negative pressure. Is this permissible, or must they be done inside the containment itself? If these operations must be done inside the containment, how does one place the plastic used to construct the containment and decon/load-out into bags after the containment and decon/load-out are torn down, bearing in mind that the area has passed final clearance sampling by that time?"

Response: The department believes that the bag-out under negative pressure is considered part of containment. No change was made as a result of this comment.

Comment: Concerning §295.60(j)(3), one commenter suggested the following change be made for clarity: "It is a violation of these rules...."

Response: The department agrees and has incorporated this change.

Comment: Concerning §295.60(j)(3), one commenter suggested that "the exterior bag or fiberboard drum shall apply warning and generators labels" be changed to "the exterior bag or fiberboard drum shall have warning and generators labels applied" and that "Labeling of ACBM must be done prior to removal from the containment area" be changed to "Labeling of ACBM must be done prior to removal from the regulated area".

Response: The department agrees and has made the appropriate changes.

Comment: Concerning §295.60(j)(3), one commenter questioned whether or not the department accepts the use of one cubic-yard, plastic-lined, cloth-reinforced "bulk bags" in lieu of fiber drums.

Response: In public buildings, the department only recognizes bags and procedures as outlined in §295.60(j). If by "bulk bags" the commenter means large dumpster linings commonly called "burrito bags," then "bulk bags" are not allowed in public buildings. No change was made as a result of this comment.

Comment: Concerning §295.60(j)(6), one commenter stated, "ACBM is not labeled during the abatement. Labeling of bags of ACBM waste is accomplished in the bag-out room which is attached to, and adjacent to the containment." The commenter suggested "this paragraph should say 'labeling of containers of ACBM waste must be done prior to removal of the container from the bag-out area'".

Response: The department understands the commenter's concerns and has made the appropriate changes.

Comment: Concerning §295.60(j)(7), one commenter suggested that the following change in text should be made: "(and pass visual inspection by the LAAS and the LAPM)."

Response: The department believes that the final visual inspection is the consultant's responsibility. The department is only concerned that the consultant performs his inspection. No change was made as a result of this comment.

Comment: Concerning §295.60(m)(2), two commenters noted, "As written, this paragraph requires that any electrical service entering the regulated and containment areas will be connected through GFCI." Each commenter felt that such a requirement is sensible for portable electric cords but commented that pre-existing electrical services (such as wall-mounted conduits, electrical distribution and control boxes, and fixed lighting equipment) "would typically have been electrically deactivated and sealed off prior to actual removal of ACBM within the containment." One commenter suggested the following substitute language: "Electrical services introduced to the regulated and containment areas for operation of the abatement equipment shall be shock-protected by ground-fault circuit interrupters (GFCIs)." The other commenter suggested the following wording: "Electrical equipment introduced to the O&M abatement containment areas for operation of the abatement equipment shall be protected by ground-fault circuit interrupters (GFCIs)."

Response: The department agrees with the commenters that the intent of the rule is to require active electrical service lines to be shock-protected. Although pre-existing electrical services might "typically have been electrically deactivated and sealed off" if not in use, however, inadvertent or deliberate negligence could occur. Any active lines, whether pre-existing or temporarily introduced, that are not protected by GFCIs represent potential hazards to persons in the regulated areas. To more accurately reflect the intent of this subsection, the department has changed it to read, "All active electrical service lines within the regulated and containment areas shall be connected through ground-fault circuit interrupter (GFCI) units."

Comment: Concerning §295.61(a), one commenter suggested the following changes for purposes of completeness and clarity: "start and completion dates in compliance with 40 Code of Federal Regulations (CFR) Part 61, Subpart M, §61.145, and this section."

Response: The reference to the Code of Federal Regulations was inadvertently deleted from the proposed rule, and the department agrees that it should be restored. Because §61.145 is by definition part of Subpart M, the department has changed the reference to read "40 CFR §61.145."

Comment: Concerning §295.61(b), two commenters stated that requiring an additional letter is burdensome and serves no real purpose that the other project documents do not. The commenters suggested that this subsection should read, "delegated to the owner's agent, such as a licensed asbestos abatement contractor, ACA, or LAC in writing. Such wording incorporated in the project specifications or contract documents meets the requirement of this paragraph."

Response: The department agrees that specifications or contract documents are acceptable means of documenting the delegation of responsibility. No change was made as a result of this comment.

Comment: Concerning §295.61(f), one commenter said that as written, this subsection seemed to require notification for cleanup of a minor fiber release episode and wondered if that were the intent of the rule.

Response: Section 295.61 requires notification for all abatements of any quantity of ACBM in a public building, and quantities greater than the threshold amounts in NESHAP facilities, except that notification is required for demolition regardless of the amount. Emergency cleanup related to minor fiber release episodes requires notification. An emergency notification number can be obtained by calling the appropriate regional department office. No change was made as a result of this comment.

Comment: Concerning §295.62(b)(3), one commenter considered the examination answer sheet to be a work document and, as such, to be disposable. The commenter felt that the requirement to maintain the examination answer sheets as permanent records is burdensome and should be deleted from the rule. The commenter suggested that the last sentence of the subsection be revised to read "All records required to be maintained under this section shall be available for inspection by the department upon completion of all of the mandatory reporting requirements".

Response: The department disagrees. The answer sheet is the primary indicator of whether a student has successfully completed the course. Records must be available following the examination for department inspection at any time. No change was made as a result of this comment.

Comment: Concerning §295.62(c)(2)(O), one commenter felt that including all personnel "on site" is too broad and unnecessary. The commenter suggested substituting "personnel entering a Regulated Area" for "on-site employees."

Response: Although this subsection was deleted in the proposed rules, the department understands the intent of the commenter and has restored the subsection to the final rules and has made the suggested change.

Comment: Concerning §295.62(e), one commenter indicated that this requirement is very difficult for a licensed asbestos consultant. The commenter wondered how long a consultant is required to keep such files and what a consultant should do when leaving a company. "If we leave a company, we cannot take client files with us. It is more common for the Consultant Agency to keep these types of files and not the Individual Asbestos Consultant. Another commenter asked how long must records be kept? Who gets them when company goes out of business?"

Response: The department agrees that a time limit should be set to keep consultants records. In order to give the opportunity for comment, the department will publish a suggested time limit at a later date. In the meantime, these records should be kept for 30 years. When a consultant is going out of business, the department recommends that the consultant offer the records to the building owner for further retention. No change was made as a result of this comment.

Comment: Concerning §295.64(a)(6), one commenter suggested that the one-hour lunch break should be part of the required eight hours of training. The commenter recommended that the subsection be re-written to state: "One day of training equals 8 hours, including breaks and lunch."

Response: The department agrees and has made the appropriate changes. There must be a minimum of 6.67 hours of training in one day of training.

Comment: Concerning §295.64(a)(6), one commenter thought that "not engaged" is a subjective term and difficult to understand without some sort of definition. The commenter recommended that alternative wording more descriptive of the intent of the department's concern be included or that "and being in the room but not engaged in the course in the judgment of the instructor" be struck from the subsection.

Response: The department agrees.

Comment: Concerning §295.64(e)(15), one commenter felt that the classroom area is appropriate for a field trip site and suggested this subsection be revised to state "field trip, to include at a minimum, a partial building walk-through inspection at a suitable location which may include the classroom as well as sufficient other areas as determined by the trainer."

Response: The United State Environmental Protection Agency (EPA) has provided guidance that the field trip must be outside the classroom. No change was made was made as a result of this comment.

Comment: Concerning §295.65(f)(3), one commenter asked if training providers could use digital photographs for group photographs.

Response: The department understands the concerns of the commenter and for greater efficiency to the training providers, has changed this section to allow digital images for the group photos.

Comment: Concerning §295.65(f)(3), one commenter observed that some students complete the required course exams before the end of the allotted time. According to §295.55(d)(7)(B), a student may miss up to 10% of a course. The commenter noted that it is customary for some instructors to allow the 15 to 30 minutes that a student might "miss" after he has completed the exam, but before the official end of the course, as part of that 10%. If a trainer takes the group photo before the exam (to allow faster students to leave early), the group photo might include a student who failed and did not receive a certificate. That same person may be allowed to re-test at a later date and may pass or may fail, again creating a conflict. There is nothing in the rule to address at least these two permeations -and there may be more. Until such time that the department can address these and all of the other possibilities, which are allowed under the rule in §295.55, suggest that the third sentence be deleted in its entirety.

Response: The department suggests that any student included in the group photograph that did not pass the course be clearly identified. Appropriate changes were made to the rule.

Comment: Concerning §295.65(f)(3), one commenter stated that the standard "Polaroid 600 film image" is a 3-1/2 inches by 4-1/2 inches and recommended that, because the department has been accepting these photographs for the past four years, the last sentence in this subsection be revised to read "no smaller than a standard 3-1/2 inches by 4-1/4 inches print".

Response: The department agrees to change the size of the photograph as suggested.

Comment: Concerning §295.69, several commenters suggested limiting the time between a department site inspection and the issuance of citations. Two commenters recommend that department inspectors be authorized to issue citations on-site at the time of the inspection. The other commenter recommended that the department limit itself to a maximum of 30 days from the date of inspection to notify the violator of the alleged violation and proposed penalty.

Response: The department believes that the complexity of the cases and the need for laboratory results make this suggestion for field citations unfeasible. It also takes time to fairly and accurately review cases recommended for enforcement by a field inspector. The process involves careful review of the evidence presented by the field inspector to determine if all requirements have been met to support a valid case for a notice of violation. The department is always evaluating the process to improve on both the quality of the cases developed and the timeliness of the total process. No change was made as a result of this comment.

Comment: Concerning §295.69(c)(3)-(4), one commenter questioned whether it was the department's intent to suspend or revoke a license if a person violated the rules.

Response: This language reflects the statutory requirement that previously existed in TAHPA § 8(c)(3)-(4) which was expanded by HB 2085 enacted in 1999. HB 2085 requires that the department "shall" reprimand or take other enforcement action for various infractions including failure to comply with these rules or any applicable federal or state standards for licensed asbestos activities. The department interprets "reprimand" to include administrative penalties. While the department expects that most violations will be resolved by administrative penalties, it retains the right to use all enforcment options available to it. No change was made as a result of this comment.

Comment: Concerning §295.69(c)(4), one commenter felt that treating all types of infractions (from "relatively minor" to "severe") similarly is unfair and inappropriate and that this subsection should be deleted.

Response: As noted in the response above, this language is statutorily required; however, the department has established a penalty matrix for different levels of violation. This subsection providing for denial, revocation or suspension is reserved for the most severe violations. No change was made as a result of this comment.

Comment: Concerning §295.69(c)(5), one commenter suggested that losing a record (through oversight) and creating a false record (through fraud) are different issues. The commenter recommended that the subsection be modified to clarify that distinction.

Response: The department understands the commenter's concerns and has made the appropriate changes for clarity.

Comment: Concerning proposed §295.69(c)(7), one commenter said a description or meaning is needed for the term "valid complaints".

Response: The department agrees and has deleted this subsection.

Comment: Concerning §295.69(g), one commenter requested that more explanation or supporting facts to justify its inclusion be provided. "It appears that the department can put a licensee on probation for violation of the department regulations. This is why §295.58 (k)(1) (The department licensed company is responsible for its employees' documents to be on site;) would greatly affect all companies licensed with the department. This section needs to be removed or amended as to what constitutes probation."

Response: Due to a revision of the Texas Asbestos Health Protection Act (TAHPA), article 4477-3a, Tx. Civ. Stat. Ann. by HB 2085, (1999) this section is required as written. It does not change the department's position on how it handles enforcement cases. It may allow a person on suspension additional avenues to work back into activities that require a license. No change was made as a result of this comment.

Comment: Concerning §295.69(g)(1), one commenter felt that this statement is vague and that the reporting requirements need to be defined more clearly.

Response: This language is required by HB 2085 (1999). The reporting requirements if any, will be determined on a case-by-case basis depending on the nature and severity of the violation. No change was made as a result of this comment.

Comment: Concerning §295.69(g)(2), one commenter felt that this statement is vague and that the meaning of "limit the practice" needs to be defined more clearly.

Response: This language is required by HB 2085 enacted in 1999. The practice will be limited as determined on a case-by-case basis by the board depending on the nature and severity of the violation. No change was made as a result of this comment.

Comment: Concerning §295.69(g)(3), one commenter felt that this statement is vague and that the professional education requirements need to be defined more clearly.

Response: This language is required by HB 2085 (1999). The education required will be determined on a case-by-case basis depending on the nature of the violation and the license category of the person. No change was made as a result of this comment.

Comment: One commenter thanked the department for no longer equating failure to pay a notification fee with failure to establish a containment. The commenter believes the notification penalties should be further broken out as follows: §295.70(f)(2)(B) "failure to submit a notification or submitting an improper notification." The commenter also wanted the department to delete §295.70(f)(2)(F) "failure to submit a notification or to pay the required fee" and change §295.70(f)(3)(A) to say "failure to properly complete the notification form or to pay the required fee."

Response: The department considered the issues raised by the commenter. Payment of notification fees is critical to program function, and it is necessary that the notification be submitted to the department. Failure to notify should carry a sufficient fine to encourage compliance. The department reconsidered the proposed change and determined the best avenue to encourage compliance was to put the highest level of enforcement penalty on the case where no notification is submitted. The second level is placed upon not paying the notification fee and the third level placed upon paying the notification fee late. No change was made as a result of this comment.

Comment: One commenter said concerning §295.70, that the description of a Severity Level I violation contains the following: "This category shall include fraud and misrepresentation". "Should there be a 'not' included in that sentence or it is the department's intent to subject fraud and misrepresentation to $l00/day penalties?"

Response: The department agrees. It is not the intent of the department to limit fraud and misrepresentation to $100.00 per day penalties. This section has been modified by removing fraud and misrepresentation from this category. The department feels that fraud and misrepresentation where public health is concerned are of far more concern and deserve corresponding penalties. Fraud such as a training provider submitting a forged or altered training certificate in order to obtain a training provider or other license is subject to a $10,000 per day penalty under §295.70(f)(1)(F).

Comment: Two commenters expressed concern that the rules are becoming more oriented towards punishment and revenue generation than responsibility for human health.

Response: The department has written and enforces the TAPHR with the intent to protect public health and safety as its main objective. The department is very much focused on preventing exposure to the public and has made every effort to develop rules in partnership with the regulated community and general public to meet this end. No change was made as a result of this comment.

Comment: One commenter expressed concern that the rules and the efforts of the department focus disproportionately and detrimentally on licensed individuals and activities rather than on finding "uncontrolled projects."

Response: The asbestos program has a targeting plan that focuses some of its efforts on inspecting non-notified activities. When violations are found on a notified or non-notified activity they are treated in accordance with the rules. No change was made as a result of this comment.

Comment: One commenter asked if there has been any discussion on whether a person with over 10 or 15 years of experience working for an asbestos consulting company should be allowed to qualify for the asbestos consultants license.

Response: Although there has been discussion in the past, the department maintains the position that the educational requirement is in the best interest of providing greater public health protection. No change was made as a result of this comment.

Comment: One commenter indicated that there is no §295.21 in the rules and questioned this. The commenter also commented on the statement in the preamble that a building be certified asbestos-free by an engineer or architect. The commenter said this should be changed to show "licensed professional engineer or registered architect in the state of Texas" to ensure compliance with legal authorities pertaining to the ability to make engineering or architectural decisions according in other Texas laws.

Response: Section 295.21, which covers administrative fees to review asbestos management plans, was not published in the proposed rules because no changes were proposed to it. The rest of the commenter's concern is directed at the preamble; however, the issue has been addressed by making appropriate changes to the rules that require appropriate Texas licensure.

Comment: One commenter suggested that the department consider a complete review of the issue and dramatically revise its rules to incorporate what we have learned over the years rather than engage in tweaking the regulations.

Response: The department may consider this approach in the future. No change was made as a result of this comment.

Comment: One commenter expressed concern that many of the proposed amendments appear to reflect an increased regulatory emphasis by the department on asbestos-containing building materials (ACBM) without regard to whether the regulations are necessary for reducing exposure to asbestos fibers. The commenter felt that the concepts of friability and significant potential for friability seem increasing absent from TAHPR and urged the department to reemphasize safeguarding against potential exposure to asbestos fibers instead of over-regulating ACBM itself if no potential exposure threat really exists.

Response: The department understands the commenter's concerns. The rules attempt to control exposure to asbestos fibers by regulating the activities that have the highest risk for generating exposure. The department constantly reevaluates its enforcement policies and refocuses effort to provide the maximum benefit from its regulatory activities. The department is very much oriented towards preventing exposure to the public and has made every effort to develop rules in partnership with the public to meet this end. No change was made as a result of this comment.

Comment: One commenter said that although the Asbestos Programs Branch's web site indicated that the proposed rule changes were added to the site on December 10, 2002, he was unsuccessful in numerous attempts to open the web site during the holidays.

Response: The department added a link to make it convenient for people to navigate to the Texas Register , the official site containing the proposed rules. The site might not have been available due to security threats over the holidays. No change was made as a result of this comment.

Comment: One commenter expressed concern that the changes to the rules will have far-reaching effects but were made hurriedly.

Response: The department sought input from stakeholders before publishing the rules. The rules are a compilation of those stakeholders' input and the rules were published in the Texas Register for a 30-day comment period. No change was made as a result of this comment.

Comment: Numerous comments were received by the department about the late mailing of the courtesy letter-notifying stakeholders of the public hearing in Austin and of the 30-day comment period.

Response: The department regrets that stakeholders did not receive the courtesy notice in a timely fashion. The letter did serve the purpose of alerting stakeholders of the published proposed rules and of the opportunity to submit written comments. No change was made as a result of this comment.

The department is making the following changes due to staff comments.

Change: Concerning §295.31 made change to reflect that the United States Occupational Safety and Health Administration asbestos rules are used by reference in some areas of the rules.

Change: Concerning §§295.32(87), 295.34, 295.36(c), 295.38, 295.39(h)(14), 295.40, 295.58(h)(3), and 295.69(c)(3), grammatical changes where made for clarity.

Change: The statement concerning workers' compensation insurance has been removed from the licensing sections because a person applying for a license would not necessarily have a contract with a building owner that required him or her to have workers' compensation insurance.

Change: Where the word "enclosure" was used to describe containment, the department has replaced it with the word "containment" for consistency and clarity.

Change: Concerning §295.34(c)(1), "During the construction of or renovation in" was added in order to fully explain when the MSDS is allowed. "projects" was changed to "products" to correct a typographical error.

Change: Concerning §295.36, the department made changes to §295.36(a)(1) to be consistent with §295.36(a)(2) by explaining what cut means, referenced 29 CFR §1926.1101 to help define the term intact, removed the word "the" from the title of the Resilient Floor Covering Institute (RFCI) work practices in §295.36(a)(3) to reflect accurately the title, and added the date of publication for the RFCI work practices in §295.36(a)(5) to reflect the correct version allowed by the department. The department reworded the last sentence of §295.36(a)(6) to more clearly specify when the RFCI work practices must cease.

Change: Concerning §295.42(f)-(g), proposed deleted subsection (f) ("Responsibilities") was restored. The department discovered that the "Responsibilities" subsection, which was originally published in the October 6, 1992, issue of the Texas Register , is missing from the official Texas Administrative Code. Since the time of its publication, no changes have ever been made to this subsection and it was never proposed for deletion, hence no comment is required. The subsection will be inserted in original form except for the reference made to the OSHA regulations which was modified to bring it up to date with how OSHA regulations are currently used in the rules. The current subsection (f) was changed to (g).

Change: Concerning §295.55(d)(7)(C), "questions and answers" was changed to "questions and possible answers."

Change: Concerning §295.55(e)(1), the department holds meetings for the training providers to improve the quality of training courses, and department employees chair these meetings. The word "sponsored" was changed to "held".

Change: Concerning §295.60(a)(2), the department added "as at least as protective of the public health as the standard method described in this section" to be consistent with section 294.47(a)(1).

Change: Concerning §295.60(j)(1), the term "fiberboard drum" was restored since it is still allowed as a method to complete the requirement to double bag under §295.60(j)(3).

Change: Concerning §295.61(j)(4), the department changed the term "notification" to "date of invoice" to add clarity.

Change: Concerning §295.64(a)(2), the department added the word "also" to indicate that the hands-on training was not the only part of the course that was prohibited from combining with other courses, but to emphasize this, since the MAP does not allow it.

Change: Concerning §295.65(f)(3), the department changed "10 days" to "10 working days" to add clarity and give the Training Provider additional time to submit course information.

Change: Concerning §295.69(a), this change is statutorily required by HB 2085 and to be consistent with the changes made to §295.69(c).

Change: Concerning §295.69(e), this section was deleted to be consistent with the new time periods set in §295.69(c).

Change: Concerning §295.69(f), this section was deleted to be consistent with the new time periods set in §295.69(c).

Change: Concerning §295.70(f), the department changed the Severity Levels to the following: a Critical Violation is now Severity Level I and a Significant Violation is now a Severity Level III (Note: Serious Violation - Level II does not change.) This change is to provide consistency with Severity Levels in other department rules. The department also moved the sentence "This category shall include fraud and misrepresentation." under critical violation to be consistent with the examples of critical violations listed in this section.

Change: The order of §295.70(f) has been modified to reflect the order of severity levels in other department rules.

One public hearing was held in Austin, Texas on December 20, 2002. There were three people who attended that meeting and two made comments. A total of 22 persons made written comments including: State Representative Garnet F. Coleman; the University of Texas System Environmental Advisory Committee; The Environmental Consultancy; Baker Botts, L.L.P., for Waste Management, Inc.; the Fort Worth Independent School District; the Resilient Floor Covering Institute; Arias & Associates; Environmental/Occupational Solutions Corp.; Environmental Technologies, Inc.; the Scientific Investigation & Instruction Institute; Environmental Solutions, Inc.; the Texas Department of Mental Health and Mental Retardation; Sun City Analytical, Inc.; GEBCO Associates, Inc.; Baer Engineering; and the Texas Department of Health. The commenters were neither for nor against the rules in their entirety; however, they raised questions, offered comments for clarification purposes, and suggested clarifying language concerning specific provisions in the rules. A total of 279 comments in 22 letters were received.

The amendments are adopted under Texas Civil Statutes, Article 4477-3a, which provides the Board of Health (board) with the authority to adopt rules regarding asbestos removal, encapsulation or enclosure, including licensing and regulation; Health and Safety Code, §12.001, which provides the board with authority to adopt rules to implement every duty imposed by law on the board, the department, and the commissioner of health; and implements Government Code, §2001.039.

§295.31.General Provisions.

(a) Problem. In more than 25 years of research into the relationship between airborne asbestos fibers and the diseases such exposure can cause, the bodily mechanism by which inhaled asbestos fibers initiate cancer or asbestosis is still not understood, no effective treatment has been found, and the only means of preventing asbestos disease depends entirely on limiting the exposure of the individual to asbestos fibers.

(b) Purpose. The purpose of these sections is to establish the means of control and minimization of public exposure to airborne asbestos fibers, a known carcinogen and dangerous health hazard, by regulating asbestos related activities in public and commercial buildings and facilities as defined by these sections.

(1) For the purposes of licensure and procedures in public buildings:

(A) Rules application. These sections apply to all buildings which are subject to public occupancy, or to which the general public has access, and to all persons disturbing, removing, encapsulating, or enclosing any amount of asbestos within public buildings for any purpose, including repair, renovation, dismantling, demolition, installation, or maintenance operations, or any other activity that may involve the disturbance or removal of any amount of asbestos-containing building material (ACBM) whether intentional or unintentional. Also included in these rules are the qualifications for licensure of persons, requirements for compliance with these sections and all applicable standards of the United States Environmental Protection Agency as adopted in §295.33 of this title (relating to Adoption by Reference of Federal and Other Standards) and those of the United States Occupational Safety and Health Administration as adopted and referenced in these rules.

(B) Exclusions. Private residences and apartment buildings with no more than four dwelling units are excluded from coverage by these rules. Except as provided in subsection (c)(2) and (c)(3) of this section, industrial or manufacturing facilities, in which access is controlled and limited principally to employees therein because of processes or functions dangerous to human health and safety, federal buildings and military installations are excluded from coverage by these rules.

(2) For the purposes of Federal National Emission Standards for Hazardous Air Pollutants (NESHAP) enforcement only: §§295.32; 295.34(a), (b)(1)-(3), (c), and (f); 295.61; 295.67-68; 295.70; and 295.71 of this title (relating to Texas Asbestos Health Protection) apply to all facilities. These sections shall apply to the extent necessary to allow the department to adopt and enforce the federal NESHAP. For facilities which are not otherwise subject to this title as public buildings, the department will apply and enforce these sections in a manner consistent with the NESHAP.

(3) For purposes of enforcing the Environmental Protection Agency (EPA) Asbestos Model Accreditation Plan (MAP) in commercial buildings, §§295.31, 295.32, 295.33, 295.34(c), (e) and (g), 295.57, 295.64 (except (f)-(h)), 295.66, 295.67, 295.68 and 295.70 of this title (relating to Texas Asbestos Health Protection) apply. For buildings which are not otherwise subject to this title as public buildings, the department will apply and enforce these sections in a manner consistent with the MAP.

(4) For the purposes of the Asbestos Hazard Emergency Response Act (AHERA) of 1986, U.S.C. 2605, 2607(c), 2643, and 2646, enforcement only: §§295.32 and 295.63 of this title (relating to Definitions and Asbestos Hazard Emergency Response Act (AHERA) Compliance) apply to all LEAs. Sections 295.32 and 295.63 of this title shall apply to the extent necessary to allow the department to adopt and enforce the federal AHERA.

(d) Severability. Should any section or subsection in this chapter be found to be void for any reason, such finding shall not affect all other sections.

(e) License possession requirements. Anyone engaged in asbestos-related activities in a public building must provide proof of a current license to any inspecting official from the Texas Department of Health (department), to an employer, or to a prospective employer upon request. All licensed individuals must have the Identification Card issued by the department on the work site at all times while engaged in any asbestos-related activity. For individuals, this is the only proof of a valid license.

§295.32.Definitions.

The following words and terms, when used with these sections, shall have the following meaning, unless the context clearly indicates otherwise.

(1) Accredited person--A person who has attended and passed, within the last year, the appropriate asbestos course, as described in §295.64 of this title (relating to Training: Required Asbestos Training Courses) offered by an asbestos training provider licensed by the department or one that has been approved by another state, that has the authority from EPA to approve courses, or that has been approved directly by EPA.

(2) Act--The Texas Asbestos Health Protection Act, as amended, Chapter 1954, Texas Occupations Code, effective June 1, 2003, formerly, Texas Civil Statutes, Article 4477-3a.

(3) Adequately wet--Sufficiently mixed or penetrated with liquid to prevent the release of particulates. If visible emissions are observed coming from asbestos-containing material, then that material has not been adequately wetted. However, the absence of visible emissions is not sufficient evidence of being adequately wet.

(4) AHERA--Asbestos Hazard Emergency Response Act of 1986, Public Law 99-519. The act amends the Federal Toxic Substances Control Act, 15 United States Code, §2641, et seq., by requiring an inspection of all school buildings (Grades K-12), all school administrations to develop plans for controlling asbestos in or removing asbestos from school buildings, and providing penalties for non-compliance.

(5) AIHA--The American Industrial Hygiene Association.

(6) Airlock--A system for permitting ingress and egress to and from the containment, consisting of doors and/or curtains that control air-flow patterns in the doorway such that no air escapes to the outside of the containment.

(7) Air monitoring--The collection of airborne samples for analysis of fibers.

(8) Asbestos--The asbestiform varieties of chrysotile, amosite, crocidolite, tremolite, anthophyllite, and actinolite.

(9) Asbestos abatement--The removal, the encapsulation or the enclosure of asbestos for the purpose of, or that has the effect of, reducing or eliminating airborne concentrations of asbestos fibers or amounts of asbestos-containing building material.

(10) Asbestos abatement activity--Asbestos abatement, or any on-site preparations or clean-up related to the abatement.

(11) Asbestos abatement contractor--A person who undertakes to perform asbestos removal, enclosure, or encapsulation for others under contract or other agreement.

(12) Asbestos abatement supervisor--An individual who is in direct charge of and responsible for the personnel, practices, and procedures of an asbestos abatement activity or project.

(13) Asbestos consulting activities--Consulting activities in public buildings include: the designing of asbestos abatement projects; the survey for asbestos-containing building materials; the evaluation and selection of appropriate asbestos abatement methods and project layout; the preparation of plans, specifications and contract documents; the review of environmental controls and abatement procedures for personal protection that are to be employed every day of the asbestos abatement activity, from the start through the completion dates of the project; the design of air monitoring of the project; any survey, management planning, air monitoring, or project management performed by or for the consultant or consulting agency; consultation regarding compliance with various regulations and standards; recommending abatement options; and representing the consultant agency or consultant in obtaining consulting work.

(14) Asbestos-containing building material (ACBM)--Surfacing asbestos-containing material, thermal system insulation asbestos-containing material, or miscellaneous asbestos-containing material that is found in or on interior structural members or other parts of a public or commercial building.

(15) Asbestos-containing material (ACM)--Materials or products, including any single material component of a structure or any layer of a material sample, that contain more than 1.0% of any kind or combination of asbestos, as determined by the Environmental Protection Agency recommended methods as listed in EPA/600/R-93/116, July 1993, "Method for the Determination of Asbestos in Bulk Building Materials".

(16) Asbestos-containing waste material--Includes mill tailings or any waste that contains commercial asbestos and is generated by a source subject to the provisions of 40 CFR Part 61, Subpart M. This term includes filters from control devices, friable asbestos waste material, and bags or other similar packaging contaminated with asbestos. As applied to demolition and renovation operations, this term also includes regulated asbestos-containing materials, and materials contaminated with asbestos including disposable equipment and clothing.

(17) Asbestos exposure--Airborne asbestos fiber concentrations resulting from disturbance or deterioration of asbestos or asbestos-containing building material.

(18) Asbestos project design--Asbestos abatement project design includes the inspection of public buildings for asbestos-containing building material, the evaluation and selection of appropriate asbestos abatement methods, project layout, the preparation of plans, specifications and contract documents, and the review of environmental controls, abatement procedures and personal protection equipment to be employed every day of the asbestos abatement activity, from the start through the completion dates of the project.

(19) Asbestos-related activity--The disturbance (whether intentional or unintentional), removal, encapsulation, or enclosure of asbestos, including preparations or final clearance, the performance of asbestos surveys, the development of management plans and response actions, asbestos project design, the collection or analysis of asbestos samples, monitoring for airborne asbestos, or any other activity required to be licensed under the Texas Asbestos Health Protection Act.

(20) Asbestos removal--Any action that dislodges, strips, or otherwise takes away asbestos-containing building material.

(21) Asbestos reporting unit (ARU)--An asbestos reporting unit is 160 square feet or 260 linear feet or 35 cubic feet of asbestos-containing building material in public buildings or regulated asbestos-containing material in facilities, as defined under National Emissions Standards for Hazardous Air Pollutants.

(22) Board--The Texas Board of Health.

(23) Building owner--The owner of record of any building. A building owner may hire a contractor or other agent such as an architect, engineer, or property manager who may assume certain tasks as outlined in §295.34(b)(5)-(6) of this title (relating to Asbestos Management in Facilities and Public Buildings). (See also the definition of facility owner.)

(24) Category I nonfriable asbestos-containing material (ACM)--Asbestos-containing packings, gaskets, resilient floor covering, and asphalt roofing products containing more than 1.0% asbestos as determined using Polarized Light Microscopy.

(25) Category II nonfriable asbestos-containing material (ACM)--Any material, excluding Category I nonfriable asbestos-containing material, containing more than 1.0% asbestos as determined using Polarized Light Microscopy that, when dry, cannot be crumbled, pulverized, or reduced to powder by hand pressure.

(26) CFR--The Code of Federal Regulations.

(27) Commissioner--The Texas Commissioner of Health.

(28) Commercial asbestos--Any material containing asbestos that is extracted from ore and has value because of its asbestos content (National Emissions Standards for Hazardous Air Pollutant definition, 1990).

(29) Commercial Building--The interior space of any industrial, federal-government-owned building, or residential structure, installation or building (including any structure, installation, or building containing condominiums or individual dwelling units operated as a residential cooperative, but excluding residential buildings having four or fewer dwelling units). Interior space includes exterior hallways connecting buildings, porticos, and mechanical systems used to condition interior space.

(30) Competent person--The individual designated as the competent person by the United States Occupational Safety and Health Administration regulations in 29 CFR §1926.1101. For an asbestos National Emissions Standards for Hazardous Air Pollutant (NESHAP) project, this is a person with asbestos NESHAP training.

(31) Containment--A portion of the regulated area that has been sealed and placed under negative air pressure with air machines using high-efficiency particulate air (HEPA) filters.

(32) Contractor--A person who constructs, repairs, or maintains a public building as an independent contractor, or is under contract to perform a service with wage or income reporting and tax responsibility to the state or federal government. The term includes a subcontractor.

(33) Demolition--The wrecking or removal of any load-supporting structural member of a public building or facility or the intentional burning of any public building or facility.

(34) Department--The Texas Department of Health.

(35) Designated person--The individual designated under 40 CFR Part 763 Subpart E to oversee all asbestos activities including compliance with all laws, regulations, and rules.

(36) Disturbance--Activities that disrupt the matrix of ACM, render ACM friable, or generate visible debris from ACM.

(37) Employee--A person who is paid a salary, wage, or remuneration by an entity for services performed and has a relationship with the entity that would result in the entity being liable for that person's acts or judgments.

(38) Encapsulation--A method of control of asbestos fibers in which the surface of asbestos-containing material is penetrated by or covered with a liquid coating prepared for that purpose.

(39) Enclosure--The construction of an airtight, impermeable, permanent barrier surrounding asbestos to prevent the release of asbestos fibers into the air.

(40) Environmental Protection Agency regulations--Regulations found in 40 Code of Federal Regulations at 40 CFR Parts 61-62 and Parts 700-789.

(41) EPA--The United States Environmental Protection Agency.

(42) Facility--Any institutional, commercial, public, industrial or residential structure installation or building (including any structure, installation, or building containing condominiums or individual dwelling units operated as a residential cooperative, but excluding residential buildings having four or fewer dwelling units); any ship; and any active or inactive disposal site. Any structure, installation or building that was previously subject to 40 CFR Part 61, Subpart M is not excluded, regardless of its current use or function.

(43) Facility owner--The owner of record of any facility or any person who exercises control over a facility to the extent that said person contracts for or permits renovation to or demolition of said facility. (See also the definition of building owner.)

(44) Federal-government owned building--Any building, which is not a school building as defined by 40 CFR 763.83, owned by the United States Federal Government.

(45) Friable material--Materials that when dry can be crumbled, pulverized, or reduced to powder by hand pressure, and includes previously nonfriable material after such previously nonfriable material becomes damaged to the extent that, when dry, it may be crumbled, pulverized, or reduced to powder by hand pressure.

(46) HEPA--A high-efficiency particulate air filter, capable of trapping and retaining 99.97% of mono-dispersed airborne particles 0.3 micron or larger in diameter.

(47) HVAC--Heating, ventilation, and air conditioning systems.

(48) Independent third-party air monitor--A person retained to collect area air samples to be analyzed for the owner of the building or facility being abated. The person must not be employed by the abatement contractor to analyze any area samples collected during the abatement projects being monitored or the clearance samples subject to the provisions of §295.37 of this title (relating to Licensing and Registration: Conflicts of Interests).

(49) Individual--A person acting on his or her own behalf.

(50) Industrial building--Any building where industrial or manufacturing operations or processes are conducted and to which access is limited principally to employees and contractors of the facility operator or to invited guests under controlled conditions.

(51) Inspection--An activity undertaken in a school building, public building, or commercial building to determine the quantity, presence or location, or to assess the condition of, friable or non-friable asbestos-containing building material or suspected asbestos-containing building material, whether by visual or physical examination, or by collecting samples of such material. This term includes reinspections of friable and non-friable known or assumed asbestos-containing building material which has been previously identified. The term does not include the following:

(A) periodic surveillance of the type described in 40 CFR §763.92(b) solely for the purpose of recording or reporting a change in the condition of known or assumed asbestos-containing building material;

(B) inspections performed by employees or agents of federal, state, or local government solely for the purpose of determining compliance with applicable statutes or regulations; or

(C) visual inspections of the type described in 40 CFR §763.90(i) solely for the purpose of determining completion of response actions.

(52) Installation--A building or structure, or group of buildings or structures, at a single demolition or renovation site controlled by the same owner or operator (National Emissions Standards for Hazardous Air Pollutant definition, 1990).

(53) Layer--Any constituent of an asbestos bulk sample that exhibits different physical properties such as color or composition and can be separated from the rest of the sample with an instrument such as a modeler's knife.

(54) License--Any license or registration, or any provisional license or registration, issued under this chapter.

(55) Licensee--A person who meets all qualifications and has been issued a license or registration by the Texas Department of Health in accordance with these sections.

(56) Local Education Agency (LEA)--means:

(A) a public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for, public elementary or secondary schools in a city, county, township, school district, or other political subdivision of a State, or for such combination of school districts or counties as are recognized in a State as an administrative agency for its public elementary or secondary schools;

(B) the term includes any other public institution or agency having administrative control and direction of a public elementary or secondary school;

(C) the term includes an elementary or secondary school funded by the Bureau of Indian Affairs but only to the extent that such inclusion makes such school eligible for programs for which specific eligibility is not provided to such school in another provision of law and such school does not have a student population that is smaller than the student population of the local educational agency receiving assistance under this chapter with the smallest student population, except that such school shall not be subject to the jurisdiction of any State educational agency other than the Bureau of Indian Affairs; and

(D) the owner or governing authority of any nonpublic, nonprofit elementary, or secondary school building.

(57) Major Fiber Release Episode--Any uncontrolled or unintentional disturbance of ACBM, resulting in a visible emission, which involves the falling or dislodging of more than 3 square or linear feet of friable asbestos-containing building material.

(58) Management plan--A written plan describing appropriate actions for surveillance and management of asbestos-containing material.

(59) Minor Fiber Release Episode--Any uncontrolled or unintentional disturbance of ACBM, resulting in a visible emission, which involves the falling or dislodging of 3 square or linear feet or less of friable asbestos-containing building material.

(60) Model accreditation plan--A United States Environmental Protection Agency plan which provides standards for initial training, examinations, refresher training courses, applicant qualifications, decertification, and reciprocity, as described in Title 40, CFR, Part 763, Subpart E, Appendix C.

(61) Municipality--A general-law, home-rule or special-law municipality as defined in the Texas Local Government Code §1.005. A legally created body politic providing local government functions in a community.

(62) NESHAP--The United States Environmental Protection Agency National Emissions Standards for Hazardous Air Pollutants, as described in Title 40 CFR, Part 61.

(63) NIOSH--The National Institute for Occupational Safety and Health.

(64) Nonfriable material--Material which, when dry, cannot be crumbled, pulverized, or reduced to powder by hand pressure.

(65) NVLAP--The National Voluntary Laboratory Accreditation Program.

(66) Operations and maintenance (O&M)--Operations and maintenance activities are repairs, maintenance, renovation, installation, replacement, or cleanup of building materials or equipment.

(67) Operations and maintenance (O&M) contractor--A person who holds an Asbestos Operations & Maintenance Contractor (Restricted) license for general asbestos operations and maintenance work in a public building, as a building owner or agent, or as a contractor, if working for others.

(68) Operations and maintenance (O&M) manual--A record of operations and maintenance activities in a public building.

(69) OSHA--The Occupational Safety and Health Administration of the United States Department of Labor.

(70) OSHA Regulations--Regulations found in 29 Code of Federal Regulations, particularly 29 CFR §1926.1101, which governs asbestos in construction.

(71) Owner or operator of a demolition or renovation activity--Any person who owns, leases, operates, controls, or supervises a commercial building or facility being demolished or renovated or any person who owns, leases, operates, controls, or supervises the demolition or renovation operation or both.

(72) PAT--Proficiency Analytical Testing.

(73) PCM--Phase-contrast microscopy, a method of analysis for overall airborne fiber counts using an optical microscope.

(74) PEL--Permissible Exposure Limit as defined by Occupational Safety and Health Administration regulations (29 CFR §1926.1101).

(75) Person--A person is:

(A) an individual;

(B) an organization such as a corporation, partnership, sole proprietorship, governmental subdivision, or agency; or

(76) Plans and specifications--Site-specific asbestos abatement description which includes drawings, floor plans or equivalent of sufficient size and detail, that display the location of asbestos abatement activities, the location of regulated area(s), and a clear and understandable written description of the work to be performed.

(77) PLM--Polarized-light microscopy, a method of analysis for detection of the presence and type of asbestos.

(78) Preparation--preparation for asbestos abatement activity which includes, but not limited to, the following activities:

(A) pre-cleaning; sweeping; wet wiping; high-efficiency particulate air filter vacuuming; sealing penetrations and openings; installing polyethylene; installing isolation barriers (critical barriers, dividing walls, etc.); installing any part of a decontamination system or any part of the water line connections to the showers, drains, and/or filtration; set-up or use of any load-out/bag-out systems, selection, installation, or maintenance of respiratory systems or fiber reduction systems such as misting, spraying, etc., positioning of warning signs; or

(B) installation of engineering controls (local exhaust ventilation equipped with HEPA filter dust collection systems, construction of containments or isolation mechanisms to control processes producing asbestos dust, ventilation of the regulated area to move contaminated air away from the breathing zone of employees and toward a filtration or collection device equipped with a high-efficiency particulate air filter); installation of scaffolding (in an area in which asbestos maybe disturbed during the installation); installation, set-up, and calibration of monitoring devices (including sampling systems and manometers); or

(C) removal of any item from a space within a public building, once an asbestos abatement contractor takes control of that space for the purpose of asbestos abatement. Control occurs when the area has been established by the asbestos abatement contractor as a regulated area.

(79) Public building--The interior space of a building used or to be used for purposes that provide for public access or occupancy, including schools, hospitals, prisons and similar buildings. Interior space includes exterior hallways connecting buildings, porticos, and mechanical systems used to condition interior space. The term includes any such interior space during a period of vacancy, including the period during preparations prior to actual demolition. The term does not include:

(A) an industrial facility to which access is limited principally to employees of the facility because of processes or functions that are hazardous to human safety or health;

(B) a federal building or installation (civilian or military);

(D) an apartment building with no more than four dwelling units;

(E) a manufacturing facility or building that is limited to workers and invited guests under controlled conditions;

(F) a building, facility, or any portion of which, prior to demolition, has been determined to be structurally unsound and in danger of imminent collapse by a professional engineer, registered architect, or a city, county, or state government official; or

(G) the portion of a building which has become structurally unsound due to demolition.

(80) Public school--Any elementary or secondary school operated by publicly elected or appointed school officials in which the program and activities are under the control of these officials and which is supported primarily by public funds.

(81) Regulated area--The demarcated area in which asbestos abatement activity takes place, and in which the possibility of exceeding the permissible exposure limits for the concentrations of airborne asbestos exists.

(82) Regulated asbestos-containing material (RACM)--means:

(A) Friable asbestos material;

(B) Category I nonfriable ACM that has become friable;

(D) Category II nonfriable ACM that has a high probability of becoming or has become crumbled, pulverized, or reduced to powder by the forces expected to act on the material in the course of the demolition or renovation operations regulated by 40 CFR Part 61, Subpart M.

(83) Renovation--Additions to or alterations of a building by removal, repairing, and rebuilding.

(84) Response action--A method, including removal, encapsulation, enclosure, repair, and operations and maintenance, that protects human health and the environment from friable asbestos-containing building material.

(85) Responsible person--The individual that is designated by the licensed asbestos abatement contractor, asbestos operations and maintenance contractor, asbestos laboratory, asbestos consultant agency, or asbestos management planner agency, as responsible for their operations and compliance with these rules.

(86) School--Any public or private, non-profit, elementary or secondary (kindergarten through grade 12) school as defined in the Elementary and Secondary Education Act of 1965 (20 U.S.C. 8801).

(87) School building--Any structure suitable for use as a classroom, including a school facility such as a laboratory, library, school eating facility, or facility used for the preparation of food. Any gymnasium or other facility which is specially designed for athletic or recreational activities for an academic course in physical education. Any other facility used for the instruction or housing of students or for the administration of educational or research programs. Any maintenance, storage, or utility facility, including any hallway, essential to the operation of any facility described in this definition of "school building." Any portico or covered exterior hallway or walkway. Any exterior portion of a mechanical system used to condition interior space.

(88) Small-scale, short-duration activities (SSSD)--Tasks such as, but not limited to, removal of asbestos-containing insulation on pipes; removal of small quantities of asbestos-containing insulation on beams or above ceilings; replacement of an asbestos-containing gasket on a valve; installation or removal of a small section of drywall; or installation of electrical conduits through or proximate to asbestos-containing materials. Small-scale, short-duration activities can be further defined as the following.

(A) Removal of small quantities of asbestos-containing material only if required in the performance of another maintenance activity not intended as asbestos abatement.

(B) Removal of asbestos-containing thermal system insulation not to exceed amounts greater than those which can be contained in a single glove bag.

(D) Repairs to a piece of asbestos-containing wallboard.

(E) Repairs, involving encapsulation, enclosure, or removal, to small amounts of friable asbestos-containing building material only if required in the performance of emergency or routine maintenance activity and not intended solely as asbestos abatement. Such work may not exceed amounts greater than those which can be contained in a single prefabricated mini-containment. Such a containment shall conform spatially and geometrically to the localized work areas, in order to perform its intended containment function.

(89) Start date--The dates defined as:

(A) asbestos abatement start date--For the purpose of notification to the department in accordance with §295.61 of this title (relating to Operations: Notifications), the date on which the actual disturbance of asbestos begins. Preparation that does not disturb asbestos is not the asbestos abatement start date;

(B) demolition/renovation start date--The date on which the demolition or renovation process begins.

(90) Stop date--The dates defined as:

(A) asbestos abatement stop date (completion date)--For the purpose of notification to the department in accordance with §295.61 of this title (relating to Operations: Notifications), the date on which air monitoring clearance of asbestos abatement is achieved. For removal of the resilient floor covering material in accordance with §295.36 of this title (relating to Licensing and Registration: Emergency), the date that the asbestos-containing building materials are removed from the substrate and properly containerized as specified for the project. For National Emissions Standards for Hazardous Air Pollutant projects, the date that all regulated asbestos-containing building material is removed from the substrate and properly containerized.

(B) demolition/renovation stop date--For demolition, the last date on which the wrecking and/or removal operations of load-bearing structural components are completed. For renovation, the last date that interior surfaces are altered or final clearance is obtained.

(91) Survey--An activity undertaken in a school building, public building, or commercial building to determine the quantity, presence or location, or to assess the condition of, friable or non-friable asbestos-containing building material or suspected asbestos-containing building material, whether by visual or physical examination, or by collecting samples of such material. This term includes reinspections of friable and non-friable known or assumed asbestos-containing building material which has been previously identified. The term does not include the following:

(B) inspections performed by employees or agents of federal, state, or local government solely for the purpose of determining compliance with applicable statutes or regulations; or

(C) visual inspections of the type described in 40 CFR §763.90(i) solely for the purpose of determining completion of response actions.

(92) TEM--Transmission electron microscopy. A method of analysis for detection of the presence and type of asbestos.

(93) Transportation of asbestos-containing material (ACM)--Moving asbestos materials from one site to another or from one site to an off-site storage facility or disposal site, but not to temporary storage or staging area within the same site.

(94) Working days--Monday through Friday including holidays which fall on those days.

§295.34.Asbestos Management in Facilities and Public Buildings.

(a) General. Building owners are required to inform all persons in writing, or document oral communication between the owner (or their authorized representative) and those who perform any type of maintenance, custodial, renovation, or demolition work, of the presence and location of asbestos-containing building materials (ACBM) prior to the start of any asbestos-related activity.

(1) Demolition and/or renovation of a facility or commercial building. Before performing any demolition or renovation activity in a facility or commercial building, building owners or operators shall ensure that all friable asbestos-containing material (ACM) or asbestos-containing materials which may become friable (i.e. Category II nonfriable ACM) are inspected and abated in accordance with 40 CFR Part 61, Subpart M.

(2) Demolition and/or renovation of a public building. Before performing any demolition in a public building, building owners shall ensure that all friable asbestos-containing material (ACM) or ACM which may become friable (i.e. Category II nonfriable ACM) are surveyed and abated in accordance with 40 CFR Part 61, Subpart M. Before performing any renovation in a public building, building owners are required to survey and perform asbestos abatement for all asbestos-containing building material (ACBM) that could foreseeably be disturbed in the area to be renovated in accordance with these rules. The asbestos survey and abatement for the demolition and/or renovation shall be conducted by persons licensed in accordance with these rules, and according to the standards for removal specified in §§295.58 - 295.60 of this title.

(b) Statement of responsibility. The building owner retains the primary responsibility for compliance with these rules for the presence, condition, disturbance, renovation, demolition, and disposal of any asbestos encountered in the construction, operations, maintenance, or furnishing of that building or facility, including:

(1) the responsibility for the periods of vacancy, and for all preparations prior to actual demolition; all regulated asbestos-containing material (RACM) must be removed prior to demolition in accordance with the National Emission Standards for Hazardous Air Pollutants (NESHAP), and in a public building, comply with §295.60 of this title (relating to Operations: Abatement Practices and Procedures);

(2) the obligation to inform those who enter the building or facility for purposes of construction, maintenance, installation, repairs, etc., of the presence and location of asbestos that could be disturbed by those activities, and to arrange for proper handling of any asbestos that would be disturbed or dislodged by such activity;

(3) the responsibility for periods when the building or facility is under management by others;

(4) the responsibility to ensure licensees have in effect workers' compensation insurance issued by a company authorized and licensed to issue workers' compensation insurance in this state and written in this state on the Texas form, or evidence of self-insurance, if workers' compensation insurance is required by the specifications or owner;

(5) the responsibility to hire a contractor at the building owner's discretion to oversee certain tasks. Only a contractor engaged in asbestos-related activities, as described in these sections, must be licensed. The building owner retains primary responsibility for compliance with these rules. The building owner may delegate the following duties to a contractor:

(A) preparing bid documents, which do not include plans and specifications as defined in §295.32(75) of this title (relating to Definitions);

(B) entering into contracts for asbestos-related activities with qualified licensees;

(D) paying for asbestos related activities on behalf of the owner; and

(6) the responsibility to hire an agent other than a contractor in accordance with the responsibility provisions of paragraph (5) of this subsection subject to the conflict of interest limitations of §295.37 of this title (relating to Licensing and Registration: Conflicts of Interests).

(c) Conditions requiring a mandatory asbestos survey for ACBM. Prior to any renovation or dismantling within a public building, commercial building, or facility, including preparations for partial or complete demolition, as required by 40 CFR, §61.145, owners must have a thorough survey performed. The work area and all immediately surrounding areas which could foreseeably be disturbed by the actions necessary to perform the project must be inspected and sampled as applicable prior to renovations or demolition. A copy of the survey report must be produced upon request by the Texas Department of Health (department). If a survey cannot be performed before demolition or renovation is started due to the building being structurally unsound and unsafe to enter, all material must be presumed to contain asbestos and must be treated as ACBM.

(1) In a public building the inspection must be performed by a person appropriately licensed in accordance with these rules. Criteria to rebut the presence of ACBM in a public building shall be based upon surveys which conform to generally accepted industry standards such as the protocol specified in §763.85, commonly referred to as the "AHERA" rules, which are the required method for schools. Other factors should be taken into consideration when deciding on the best method to determine the location, extent and condition of the ACBM in a non-school building. Multi-story buildings may require investigation of the systems in the building in order to identify all possible ACBM. Under no circumstances will less than three samples for each suspect homogeneous area be collected for purposes of rebutting the presence of ACBM. During the construction of or renovation in a public building, a person appropriately licensed in accordance with these rules, Texas-registered architect or Texas-licensed professional engineer may compile the information from material safety data sheets (MSDS) of all products used in the construction of the building and, finding no asbestos in any of those products, prepare a signed written certification that he has reviewed the MSDSs for all products used in the construction and that none of those products contain ACBM and; therefore, the building materials do not contain asbestos. This certification, together with copies of the MSDSs and copies of any previous asbestos surveys, may be used as an asbestos survey.

(2) In a commercial building the inspection must be performed by an accredited inspector. This person is not required to be licensed but must have the applicable Model Accreditation Plan training.

(3) In a facility the inspection must conform with 40 CFR §61.145.

(4) Asbestos surveys remain acceptable if the asbestos survey was done in compliance with the Texas Asbestos Health Protection Rules (TAHPR) in effect at the time the asbestos survey was completed, and if the asbestos survey continues to represent accurately the suspect asbestos-containing building materials, location(s) of the materials surveyed, and any asbestos conditions in the building.

(d) Asbestos control and abatement. A public building owner has the following options for managing the asbestos found in his/her buildings.

(1) Building owners may hire a licensed asbestos abatement contractor to conduct asbestos abatement.

(2) Building owners may hire or retain a licensed asbestos abatement contractor or a licensed asbestos Operations and Maintenance (O&M) contractor to conduct small-scale, short-duration work activities or cleanup affecting asbestos. When utility work is to be performed, the building owner shall either have the affected asbestos-containing material removed prior to the work of a utility contractor, or require the utility contractor to be licensed to handle asbestos-containing materials.

(3) Building owners may conduct asbestos O&M activities within public buildings with their own employees for their own account if they obtain an asbestos operations and maintenance contractor (restricted) license, according to §295.43 of this title (relating to Licensure: Asbestos Operations and Maintenance Contractor (Restricted)), have a licensed supervisor according to §295.44 of this title (relating to Licensure: Asbestos Operations & Maintenance Supervisor (Restricted)), and have registered workers according to §295.42 of this title (relating to Registration: Asbestos Abatement Workers).

(4) Building owners may conduct asbestos abatement projects, including asbestos O&M activities, if they obtain an asbestos abatement contractor's license, as set forth in §295.45 of this title (relating to Licensure: Asbestos Abatement Contractor).

(e) Prohibition. The owner of a public building and any other person who contracts with or otherwise permits any person without appropriate valid license, registration, accreditation, or approved exemption to perform any asbestos-related activity is subject to administrative or civil penalty under the Texas Health Protection Act (Act), not to exceed $10,000 a day for each violation, or criminal penalty not to exceed $25,000, confinement in jail for not more than two years, or both.

(f) Mandatory notification. Notification is required in accordance with §295.61 of this title (relating to Operations: Notifications) under the following conditions.

(1) Notification is required for any demolition of a facility or public building, whether or not asbestos has been identified.

(2) In a public building, a notification to abate any amount of asbestos must be submitted to the Texas Department of Health (department) by the public building owner and/or operator. In a facility, a notification to abate amounts described in NESHAP must be submitted to the department by the facility owner and/or operator.

(g) Mandatory abatement project design. A project design, with respect to friable ACBM, must be prepared by either a licensed consultant (for a school or public building) or an accredited project designer (for a commercial building) for all projects which involve any of the following activities:

(1) A response action other than a SSSD activity,

(2) a maintenance activity that disturbs friable ACBM other than a SSSD activity, or

(3) a response action for a major fiber release episode. Abatement projects which have a combined amount of non-friable asbestos exceeding 160 square feet of surface area, or 260 linear feet of pipe length, or 35 cubic feet of material to be removed from a public building shall require that the project be designed by a licensed asbestos consultant. The exception to this requirement is for floor tile removed in accordance with §295.36 of this title (relating to Licensing and Registration: Exemptions; Emergency). In a commercial building, non-friable material does not require a design but must be treated in accordance with 40 CFR Part 61, Subpart M.

(h) Requirement for survey and management plan. If, in the opinion of the department following a site inspection of a public building, there appears to be a danger or potential danger from asbestos-containing building materials in poor condition to the workers or occupants of the building or the general public, the department shall, by written request, require the building owner or authorized representative to complete an immediate survey and asbestos management plan by a licensed asbestos inspector and licensed management planner or licensed consultant. A copy of the management plan shall be submitted for review and approval to the department within 90 days of receipt of the written request. Copies of the plan shall be on file with the owner or management agency, and in the possession of the supervisor in charge of building operations and maintenance.

(i) A person may not install building materials or replacement parts as stated in subsection (j) of this section, in a public building unless:

(1) the person obtains a required MSDS showing that the materials or replacement parts contain 1.0% or less of asbestos; or

(2) the materials or replacement parts, according to the MSDS, contain more than 1.0% asbestos but there is no alternative material or part as demonstrated by the building owner or contractor.

(j) A MSDS shall be obtained for the following building materials or replacement parts including but not limited to:

(1) surfacing materials:

(A) acoustical plaster;

(B) decorative plaster/stucco;

(D) spray applied insulation;

(E) blown-in insulation;

(F) fireproofing insulation;

(G) joint compound; and

(H) spackling compounds.

(2) thermal system insulation:

(A) taping compounds (thermal);

(B) HVAC duct insulation;

(D) breaching insulation;

(E) pipe insulation; and

(F) thermal paper products.

(3) miscellaneous material:

(A) cement pipes;

(B) cement wallboard/siding;

(D) vinyl sheet flooring/vinyl wall coverings;

(E) floor backing;

(F) construction mastic;

(G) ceiling tiles/lay-in ceiling panels;

(H) packing materials;

(I) high temperature gaskets;

(J) laboratory hoods/table tops;

(K) fire blankets/curtains;

(L) elevator equipment panels;

(M) elevator brake shoes;

(N) ductwork flexible fabric connections;

(O) cooling towers;

(P) heating and electrical ducts;

(Q) electrical panel partitions;

(R) electrical cloth/electrical wiring insulation;

(S) chalkboards;

(T) roofing shingles/tiles;

(U) roofing felt;

(V) base flashing;

(W) fire doors;

(X) caulking/putties;

(Y) adhesives/mastics; and

(Z) wallboard.

(k) The department may exempt a demolition or renovation project from the TAHPA/NESHAP rules relating to demolition and renovation activities if:

(1) the project has received an exemption from the United States Environmental Protection Agency exempting the project from federal regulations; or

(2) the board determines that:

(A) the project will use methods for the abatement or removal of asbestos that provide protection for the public health and safety at least equivalent to the protection provided by the procedures required under board rule for the abatement or removal of asbestos; and

(B) the project does not violate federal law.

(l) Survey Required.

(1) In this section, "permit" means a license, certificate, approval, registration, consent, permit, or other form of authorization that a person is required by law, rule, regulation, order, or ordinance to obtain to perform an action, or to initiate, continue, or complete a project, for which the authorization is sought.

(2) A municipality that requires a person to obtain a permit before renovating or demolishing a public or commercial building may not issue the permit unless the applicant provides:

(A) evidence acceptable to the municipality that an asbestos survey, as required by this Act, of all parts of the building affected by the planned renovation or demolition has been completed by a person licensed under this Act to perform a survey; or

(B) a certification from a licensed engineer or architect, stating that:

(i) the engineer or architect has reviewed the material safety data sheets for the materials used in the original construction, the subsequent renovations or alterations of all parts of the building affected by the planned renovation or demolition, and any asbestos surveys of the building previously conducted in accordance with this Act; and

(ii) in the engineer's or architect's professional opinion, all parts of the building affected by the planned renovation or demolition do not contain asbestos.

§295.36.Licensing and Registration: Exemptions; Emergency.

(a) Exemption. Those who remove resilient floor covering materials in public buildings are exempt from the licensing and registration requirements of these sections, provided that:

(1) if the floor covering materials and/or adhesives have been sanded, ground, mechanically chipped, drilled, abraded or cut (includes sawing but does not include shearing, slicing or punching) prior to the start of the project, then an appropriately licensed person must be used for the abatement;

(2) upon initiating the RFCI work practices, the flooring material does not become friable, is not made into RACM, remains intact (as defined in 29 CFR 1926.1101), or is not sanded, ground, mechanically chipped, drilled, abraded or cut (includes sawing but does not include shearing, slicing or punching). Failure to stop the project under these circumstances is a violation of this section and §295.34(a) of this title (related to Asbestos Management in Facilities and Public Buildings), and subjects the contractor and the building owner to penalties in accordance §295.70 of this title (relating to Compliance: Administrative Penalty);

(3) all those engaged in removal of resilient floor coverings shall have received training in an eight-hour course which covers the elements described in the document titled, "Recommended Work Practices for Removal of Resilient Floor Coverings," published by the RFCI in 1998;

(4) in addition to the training in §295.36(a)(3), employees of schools (kindergarten through 12th grade) who elect to use this exempt method must first complete the 16-hour custodial training, as required by federal regulations adopted under authority of the Asbestos Hazard Emergency Response Act of 1986 (AHERA). Possession of a valid worker registration or supervisor license eliminates the individual's need for the 16-hour training;

(5) the actual removal of floor coverings and adhesive under this exemption is limited to the exempted methods of removal and must be conducted according to the work practices published for distribution by the RFCI in 1998, or as directed by the commissioner of health; and

(6) the asbestos activity permitted by the exemption is limited to the removal of resilient floor covering and adhesives, and does not apply to any other asbestos-related activity, nor does the training or experience gained from such practices qualify for any other asbestos-related activity. The exemption is strictly limited to flooring materials maintained in a non-friable state. RFCI guidelines are to be used; however, the permissible exposure limit (PEL) may not be exceeded. If the flooring materials become friable or the PEL is exceeded either before or during the removal, then:

(A) the person removing the floor covering is required to be licensed; and

(B) removal under RFCI exempted methods must cease, and abatement activity must conform to the requirements of these sections.

(b) Notification required. The Texas Department of Health shall receive written notification that has been postmarked or hand delivered at least ten working days prior to commencing any removal of floor coverings from public buildings permitted under the terms of this exemption, as required in §295.61 of this title (relating to Operations: Notifications). Telephone facsimile (FAX) is not acceptable.

(c) Failure to comply. Persons who fail to comply with subsection (a)(1)-(6) of this section are subject to an administrative penalty of not more than $10,000 per violation per day. Persons who fail to comply with notification requirements, or other applicable sections of the Texas Asbestos Health Protection Act (Act) or rules, are subject to administrative, civil, or criminal penalties.

(d) Abatement emergency. In an abatement emergency affecting public health or safety that results from a sudden, unexpected event that is not a planned renovation or demolition the department, on notification, may waive the requirement for a license. Call the servicing department regional office, environmental and consumer health division or (512) 834-6600 for consultation about emergencies.

§295.37.Licensing and Registration. Conflict of Interests.

(a) Independent third-party air monitoring. Third-party area monitoring and project clearance monitoring for airborne concentrations of asbestos fibers during an abatement project shall be performed by a person under contract to the public building owner to collect samples by and for the owner of the public building being abated. Such persons must not be employed or subcontracted by the asbestos abatement contractor hired to conduct the asbestos abatement project, except that:

(1) this restriction in no way applies to personal samples taken to evaluate worker exposure, as required by the Occupational Safety and Health Administration (OSHA) regulations; and

(2) an air monitoring technician providing the service for the contractor meeting his/her responsibilities under OSHA regulations must also be licensed to perform that function; and

(3) those who are licensed to perform asbestos abatement for their own account in their buildings shall employ an independent third-party air monitor for the purpose of obtaining area monitoring and final clearance.

(b) Licensee conflict of interest. Any person licensed according to these sections to perform an asbestos-related activity in a public building is subject to the following limitations on the same project in order to avoid a potential conflict of interest. These limitations apply whether the licensee is acting in his or her own capacity or as the agent of the building owner except as noted:

(1) a consultant who performs asbestos inspections or surveys, writes management plans, or designs asbestos abatement projects, may not hire an asbestos abatement contractor to engage in asbestos abatement on a project that the consultant has inspected or designed or in a building for which the consultant has written the management plan;

(2) an abatement contractor who engages in asbestos abatement may not hire a consultant to perform asbestos inspections or surveys, write management plans, or design asbestos abatement projects unless he is a building owner who is also licensed to engage in asbestos abatement and is acting as the abatement contractor in his own buildings in accordance with §295.34(d)(4) and (g) of this title (relating to Asbestos Management in Facilities and Public Buildings) on a project for which he is the abatement contractor;

(3) an abatement contractor who engages in asbestos abatement may not hire an air monitor to perform baseline, ambient or clearance air monitoring unless the exceptions in subsection (a)(1) or (a)(3) of this section apply; and

(4) certain conflict of interest provisions under this subsection do not apply to municipalities as indicated in subsection (c) of this section.

(c) Municipalities exemption. Municipalities are exempt from certain conflict of interest requirements. They may retain a licensed person who may perform asbestos inspections and surveys, write management plans, design abatement projects and abate asbestos in the same building or facility. This exemption does not allow a licensee who engages in these activities to conduct air monitoring or abatement project clearance procedures on the same project, which includes performing visual inspection and air samples for clearance in accordance with §295.58(i)(3) of this title (relating to Operation: General Requirements). Air monitoring activities must be performed by an independent third party who is not an employee of the municipality.

(d) An individual instructor shall not train himself/herself, nor shall an individual give himself/herself a physical examination in order to qualify for a license.

§295.38.Licensing and Registration: Applications and Renewals.

(a) General requirements. Applications for a license or worker registration under these sections must be made on forms provided by the Texas Department of Health (department), shall be signed by the applicant, and must be accompanied by a check or money order for the amount of the license or renewal fee. Only applications which are complete shall be considered by the department.

(b) Inquiries. Potential applicants who wish to discuss or obtain information concerning qualification requirements may call the department's Asbestos Programs Branch at (512) 834-6610 or (800) 572-5548.

(c) Denials. The department may deny an application for licensing to those who fail to meet the standards established by these rules, including, but not limited to the provisions of §295.69(c) of this title (relating to Compliance: Reprimand, Suspension, Revocation, Probation).

(d) Penalties. In accordance with §§295.69 - 295.70 of this title, penalties such as suspension, revocation or an administrative penalty may be assessed for fraud or misrepresentation in obtaining, attempting to obtain, or renewing a license or registration.

(e) Processing applications and renewals.

(1) Time periods. Applications for licensure shall be processed in accordance with the following time periods: the time from the receipt of a written application to the date of issuance by the department of a written notice of deficiency outlining the reasons why the application is deficient is 30 days; failure of the applicant to submit the required information and/or documentation within 90 days of issuance of a written notice of deficiency from the department will result in the application being denied; and the license will be issued within 60 days of the department receiving all necessary information and documents from the applicant.

(2) Reimbursement of fees. Initial application or renewal fees will be refunded only if the department does not process a completed application in the time period specified in paragraph (1) of this subsection, if fee amounts are paid in excess of the correct fee amount, or if there is a double payment. Otherwise, fees for applications and renewals are not eligible for refund. A $30 administrative fee may be deducted from refunds for double payments or excess fees.

(3) Appeal. If the request for full reimbursement authorized by this section is denied, the applicant may then appeal to the commissioner of health for a resolution of the dispute. The applicant shall give written notice to the commissioner by writing to the administrator, asbestos licensing program, the designated representative of the commissioner, requesting full reimbursement of all filing fees paid because his/her application was not processed within the adopted time period. The program administrator shall submit a written report of the facts related to the processing of the application and good cause for exceeding the established time periods. The commissioner will determine the final action and provide written notification of his/her decision to the applicant and the program administrator.

(4) Contested case hearing. If at any time during the processing of the application, a contested case proceeding arises, a hearing may be requested in writing by the applicant within 30 days of the date on the letter from the department denying the registration or license. The hearing will be conducted in accordance with the Administrative Procedures Act, Texas Government Code Chapter 2001, and the department's formal hearing rules in Chapter 1 of this title (related to the Board of Health).

(f) Renewal notices. At least 30 days before a license expires the department, as a service to the licensee, shall send a renewal notice to the licensee or registrant, by first-class mail to the last known address of the licensee. It remains the responsibility of the licensee to keep the department informed of their current address, or change of address for all license categories, and to take action to renew their certificate whether or not they have received the notification from the department. The renewal notice will state:

(1) the type of license requiring renewal;

(2) the time period allowed for renewal; and

(3) the amount of the renewal fee.

(g) Renewal requirements. No sooner than 60 days before the license or registration expires, it may be renewed for an additional one-year term providing that the licensee or worker:

(1) is qualified to be licensed or registered;

(2) pays to the department the proper amount of the nonrefundable renewal fee;

(3) submits to the department a renewal application on the prescribed form along with all required documentation;

(4) completes successfully the requirements for renewal and examination, if required;

(5) has complied with all final orders resulting from any violations of these sections; and

(6) submits the required current training certificates.

(h) Prohibition. To practice with lapsed licenses and registrations is prohibited. A person whose license has been expired for one year or more may not renew the license. The person may obtain a new license by complying with the requirements and procedures, including the examination requirements, for obtaining an original license. If a license holder makes a timely and sufficient application for the renewal of a license, the current license in his/her possession does not expire until the application has been finally granted or denied by the department.

(1) A person whose license has been expired for 90 days or less may renew the license by meeting all qualifications to renew the license, and paying to the department a renewal fee of 1-1/2 times the basic fee as follows:

(A) asbestos abatement worker - $45;

(B) asbestos operations and maintenance contractor (Restricted) -$180;

(D) asbestos abatement contractor - $750;

(E) asbestos abatement supervisor - $450;

(F) individual asbestos consultant - $450;

(G) asbestos consultant agency - $300;

(H) asbestos project manager - $225;

(I) asbestos inspector - $90;

(J) individual asbestos management planner - $180;

(K) air monitoring technician - $75;

(L) asbestos management planner agency - $300;

(M) asbestos laboratory - $300;

(N) asbestos training provider - $750; or

(O) asbestos transporter - $300.

(2) A person whose license has been expired for more than 90 days but less than one year may renew the license by meeting all qualifications to renew the license and paying to the department a renewal fee of two times the basis fee as follows:

(A) asbestos abatement worker - $60;

(B) asbestos operations and maintenance contractor (Restricted) - $240;

(D) asbestos abatement contractor - $1,000;

(E) asbestos abatement supervisor - $600;

(F) individual asbestos consultant - $600;

(G) asbestos consultant agency - $400;

(H) asbestos project manager - $300;

(I) asbestos inspector - $120;

(J) individual asbestos management planner - $240;

(K) air monitoring technician - $100;

(L) asbestos management planner agency - $400;

(M) asbestos laboratory - $400;

(N) asbestos training provider - $1,000; or

(O) asbestos transporter - $400.

(i) Replacements. A licensee or registrant may obtain a replacement certificate by submitting such request in writing along with the reissuance fee of $20.

(j) Retention of control. The department may, at any time after the filing of any application and before the expiration of any license or registration, require:

(1) additional written information and assurances; and

(2) cooperation with any inspections initiated by the department, or the production of any documentary or other evidence that the department considers necessary to determine whether the license or registration should be granted, delayed, denied, modified, suspended, or revoked.

(k) Provisional Licenses. A holder of a provisional license issued in accordance with §295.39(g) of this title (relating to Licensing and Registration: Out-of-State Applicants and Out-of-State Training) can apply for a license or registration if the applicant has completed a minimum of three hours training given by a department-licensed training provider covering Texas law and regulations as indicated in §295.39(d) of this title, paid the appropriate licensing fee in addition to the non-refundable fee listed in paragraphs (1) - (4) of this section for a provisional license, and met the following requirements:

(1) asbestos abatement worker. Qualifications as stated in §295.42(e) of this title (relating to Registration: Asbestos Abatement Workers) and provisional fee payment of $30;

(2) asbestos inspector. Qualifications as stated in §295.50(d) of this title (relating to Licensure: Asbestos Inspector) and provisional fee payment of $60;

(3) individual asbestos management planner. Qualifications as stated in §295.51(e) of this title (relating to Licensure: Asbestos Management Planner) and provisional fee payment of $120; or

(4) asbestos abatement supervisor. Qualifications as stated in §295.46(d) of this title (relating to Licensure: Asbestos Abatement Supervisor) and provisional fee payment of $300.

§295.39.Licensing and Registration: Out-of-State Applicants and Out-of-State Training.

(a) Terms of reciprocity. Persons may enter the state for purposes of asbestos abatement or other asbestos-related activity under the Texas Asbestos Health Protection Act (Act) provided they are licensed according to the terms of these sections prior to soliciting business or commencing such activities.

(b) Applicant status. All persons residing in other states, applying for any category of license, must comply with all licensing requirements which would be imposed on a Texas resident.

(c) Acceptance of qualifying documents. Out-of-state education, experience, training, and physical examinations can be accepted for the purpose of qualifying for Texas licenses provided that they are valid and are verifiable by the department. The burden of proof in such matters is the responsibility of the applicant; the department must reject unverifiable documentation.

(d) Compulsory training. All out-of-state licensees and registrants or Texas resident applicants who have received all of their training out-of-state must complete a minimum of three hours training given by a department licensed training provider on Texas law and regulations concerning asbestos prior to applying for licenses or commencement of any asbestos-related activity. The Texas law course must be completed within 60 days prior to applying for a department license. Licensee organizations must have at least one officer complete this training.

(e) Required documents. To conduct business in Texas, an out-of-state corporation or other business entity must:

(1) submit a letter or certificate from the Texas secretary of state authorizing the conduct of business in this state;

(2) submit a sales tax account identification number obtained from the Texas Comptroller of Public Accounts;

(3) submit a certificate of insurance for liability coverage written by a Texas-approved carrier if the applicant is an asbestos abatement contractor, asbestos consultant, asbestos inspector, asbestos laboratory, or asbestos transporter performing work for hire as required by §295.40 of this title (relating to Licensing and Registration: Insurance Requirements); and

(4) provide proof of workers' compensation insurance issued by a company authorized and licensed to issue workers' compensation insurance in this state and written in this state on the Texas form, or evidence of self-insurance, if workers' compensation insurance is required by contract specifications or owner; see §295.34(b)(4) of this title (relating to Asbestos Management in Facilities and Public Buildings).

(f) Exemption. An out of state corporation that engages only in interstate commerce and has no documentation described in subsection (e)(1) of this section may qualify as not transacting business in Texas under §8.01 of the Business Corporation Act and may request an exemption from the requirements of subsection (e)(1)-(2) of this section if the corporation submits a sworn affidavit from a corporate officer claiming the exemption.

(g) Provisional License and Registration. A person may request a provisional license for an asbestos inspector, individual asbestos management planner, asbestos abatement supervisor, or asbestos abatement worker registration.

(1) A provisional license or registration is valid until the date the department approves or denies the provisional license or registration holder's application for licensing or registration, or 180 days after the date the provisional license or registration is issued, whichever comes first.

(2) Non-refundable provisional license or registration fees are as follows:

(A) asbestos abatement worker - $30;

(B) asbestos inspector - $60;

(D) asbestos abatement supervisor - $300.

(3) A person may receive a provisional license issued by the department if the following criteria are met:

(A) the person requesting the provisional license or registration has been licensed or registered in good standing in that discipline for at least two years in another state, including a foreign country, that has licensing or registration requirements substantially equivalent to the requirements of these rules;

(B) for the following licenses, the person requesting the provisional license has passed a national or other examination recognized by the department relating to the provisional license requested:

(i) asbestos abatement worker;

(ii) asbestos inspector;

(iii) individual asbestos management planner; and

(iv) asbestos abatement supervisor; and

(C) the person requesting the provisional license or registration is sponsored by a company that meets the insurance requirements of §295.40 of this title (related to Licensing and Registration: Insurance Requirements), with whom the provisional license or registration holder will practice during the time the person holds a provisional license or registration. The department may waive the requirement of sponsorship for an applicant if the department determines that compliance with that subsection would be a hardship to the applicant.

(h) Formerly licensed in Texas. A person who was licensed by the department, moved to another state, and is currently licensed and has been in practice in the other state for the two years preceding the date of application may obtain a new license without reexamination. The person must meet the following standards:

(1) asbestos abatement worker. Qualifications as stated in §295.42(e) of this title (relating to Registration: Asbestos Abatement Workers) and fee payment of $60;

(2) asbestos operations and maintenance contractor (restricted). Qualifications as stated in §295.43(e) of this title (relating to Licensure: Asbestos Operations and Maintenance Contractor (Restricted)) and fee payment of $240;

(3) asbestos operations and maintenance supervisor (restricted). Qualifications as stated in §295.44(d) of this title (relating to Licensure: Asbestos Operations and Maintenance Supervisor (Restricted)) and fee payment of $180;

(4) asbestos abatement contractor. Qualifications as stated in §295.45(e) of this title (relating to Licensure: Asbestos Abatement Contractor) and fee payment of $1,000;

(5) asbestos abatement supervisor. Qualifications as stated in §295.46(b) of this title (relating to Licensure: Asbestos Abatement Supervisor) and fee payment of $600;

(6) individual asbestos consultant. Qualifications as stated in §295.47(f) of this title (relating to Licensure: Individual Asbestos Consultant) and fee payment of $600;

(7) asbestos consultant agency. Qualifications as stated in §295.48(e) of this title (relating to Licensure: Asbestos Consultant Agency) and fee payment of $400;

(8) asbestos project manager. Qualifications as stated in §295.49(d) of this title (relating to Licensure: Asbestos Project Manager) and fee payment of $300;

(9) asbestos inspector. Qualifications as stated in §295.50(d) of this title (relating to Licensure: Asbestos Inspector) and fee payment of $120;

(10) individual asbestos management planner. Qualifications as stated in §295.51(e) of this title (relating to Licensure: Asbestos Management Planner) and fee payment of $240;

(11) air monitoring technician. Qualifications as stated in §295.52(e) of this title (relating to Licensure: Air Monitoring Technician) and fee payment of $100;

(12) asbestos management planner agency. Qualifications as stated in §295.53(f) of this title (relating to Licensure: Asbestos Management Planner Agency) and fee payment of $400;

(13) asbestos laboratory. Qualifications as stated in §295.54(f) of this title (relating to Licensure: Asbestos Laboratory) and fee payment of $400;

(14) asbestos training provider. Qualifications as stated in §295.55(d) of this title (relating to Licensure: Asbestos Training Provider) and fee payment of $1,000; or

(15) asbestos transporter. Qualifications as stated in §295.56(d) of this title (relating to Licensure: Asbestos Transporters) and fee payment of $400.

§295.40.Licensing, Training and Registration: Insurance Requirements.

Persons required to have insurance must obtain policies for required coverage in the amounts specified in these sections. Self-insurance is allowed for governmental agencies and for persons who meet the self-insurance requirements under the insurance laws of Texas and receive written approval from the Texas Department of Insurance or Texas Workers' Compensation Commission. Proof of approval by the appropriate authority as required for non-governmental persons must be submitted with the application. Liability insurance shall include pollution liability for asbestos exposure. Additional requirements are as follows:

(1) Applicants for licenses or renewal of licenses must provide to the department the certificate of insurance required. The policy must be currently in force and must be written by:

(A) an insurance company authorized to do business in Texas;

(B) an eligible Texas surplus lines insurer as defined in the Texas Insurance Code, Article 1.14-2;

(D) a Texas registered purchasing group.

(2) The certificate of insurance must be complete, including all applicable coverages and endorsements, and must name the Texas Department of Health, Toxic Substances Control Division, as a certificate holder. Each required policy shall be endorsed to provide the department with at least a ten day notice of cancellation.

(3) In the event of policy cancellation by either the licensee or the insurance company, the licensee shall notify the department not later than 10 days prior to the cancellation effective date.

(4) In the event of policy cancellation or expiration, the policy shall promptly be replaced or renewed without any lapse in coverage. A certificate of the renewal policy must be provided to the department upon receipt by the licensee. In no event shall a licensee fail to have the required coverage at the time of engaging in asbestos activities. Failure to become reinsured when required may result in the imposition of an administrative penalty and/or revocation of the license.

§295.42.Registration: Asbestos Abatement Workers.

(a) Registration requirement. Individuals must be registered as asbestos abatement workers in compliance with these sections to perform asbestos abatement work in a public building, including, but not limited to, performing any maintenance, repair, installation, renovation, or cleaning that dislodges, breaks, cuts, abrades, or impinges on asbestos material. Registrations are valid for a period of one year from the effective date and are renewable.

(b) Fee. The fee for an initial application and for the annual renewal of registration of an asbestos abatement worker shall be $30.

(c) Applications and renewals. Applications shall be submitted as required by §295.38 of this title (relating to Licensing and Registration: Applications and Renewals). Out-of-state applicants must comply with §295.39(a) and (d) of this title (relating to Licensing and Registration: Out-of-State Applicants).

(d) Annual renewal. Annual renewal may be accomplished by submitting the following documentation:

(1) current worker's refresher training certificate;

(2) current physician's written statement on the specified Texas Department of Health (department) form; and

(3) the required license fee.

(e) Qualifications. Applicants for registration as asbestos abatement workers shall provide:

(1) a certificate of training from a training provider approved by or acceptable to the department indicating successful completion within the past 12 months of the approved training course for abatement workers or the annual refresher training course, as described in §295.64(d) of this title (relating to Training: Required Asbestos Training Courses). Evidence of successful completion of the contractor/supervisor course may be substituted for the initial worker course.

(2) an acceptable written opinion of a physical examination of the applicant within the past 12 months that was performed by a physician in accordance with Occupational Safety and Health Administration of the United States Department of Labor (OSHA) regulations in 29 Code of Federal Regulations (CFR), §1926.1101(m), or Environmental Protection Agency (EPA) regulations in 40 CFR, §763.121(m), relating to medical surveillance. This opinion must be submitted on the Texas Department of Health (department) "Physicians Written Statement" form only, must be signed by the doctor and include certification of the following elements:

(A) completion and review of the applicant's standardized medical questionnaire and work history with special emphasis directed to the pulmonary, cardiovascular, and gastrointestinal systems per 40 CFR §1926.1101 Appendix D;

(B) if applicant is employed, the employer must have provided, and a review made of, the description of the employee's duties as they relate to asbestos exposure, the anticipated exposure level, the personal protective and respiratory equipment to be utilized by the employee, and information from previous medical examinations of the affected employee that is not otherwise available to the physician;

(D) the pulmonary function tests of forced vital capacity (FVC) and forced expiratory volume at one second (FEV 1) in accordance with NIOSH and ATS standards;

(E) a chest roentgenogram, posterior-anterior, 14x17 inches, or current film on file with interpretation in accordance with 29 CFR §1926.1101 Appendix E. (Note: According to 29 CFR §1926.1101(m)(2)(ii)(C), it is up to the discretion of the physician whether or not a chest x-ray is required); and

(F) the employee was informed by the physician of the results of the exam and of any medical conditions that may result from asbestos exposure, including the increased risk of lung cancer attributable to the combined effect of smoking and asbestos exposure;

(3) a copy of the wallet-size photo-identification card from the training course, as required from all trainers in Texas in accordance with §295.65(f)(2) of this title (relating to Training: Approval of Training Courses). Persons submitting out-of-state training certificates with their applications may obtain the necessary photo-identification when attending the mandatory course on Texas asbestos rules, as required in accordance with §295.64(h) of this title; and

(4) a current one-inch by one-inch photograph of the face. The photograph submitted to the department for licensing purposes must have a white background.

(f) Responsibilities. A registered asbestos abatement worker shall:

(1) comply with standards of operation, including Environmental Protection Agency (EPA) regulations, adopted by reference in §295.33 of this title (relating to Adoption by Reference of Federal and Other Standards) and Occupational Safety and Health Administration (OSHA) regulations as adopted and referenced in certain sections of these rules;

(2) comply with additional work practices, as described in §295.60 of this title (relating to Operations: Abatement Practices and Procedures);

(3) comply with standards and practices for operations and maintenance activities, as described in §295.59 of this title (relating to Operations: Operations and Maintenance (O&M) Requirements); and

(4) cooperate with department personnel in the discharge of their official duties to conduct inspections and investigations, as described in §295.68 of this title (relating to Compliance: Inspections and Investigations).

(g) Prohibitions. The following specific prohibitions apply to registered asbestos abatement workers.

(1) Asbestos abatement workers are prohibited from performing asbestos abatement or O&M activities affecting asbestos except under the direct supervision of a qualified licensed supervisor.

(2) Asbestos abatement workers are prohibited from engaging in any asbestos-related activity as a supervisor or contractor.

§295.43.Licensure: Asbestos Operations and Maintenance Contractor (Restricted)

(a) Licensing requirement. Persons must be licensed as asbestos abatement contractors or as asbestos operations and maintenance (O&M) contractors (restricted) to conduct asbestos O&M activities. Building owners that would have their own employees perform such activities for their buildings shall be licensed according to this section. Such licenses are valid for one year and shall be renewed on the expiration date.

(b) Restrictions.

(1) Asbestos O&M activities are restricted to small-scale, short-duration work practices and engineering controls for tasks that result in the disturbance, dislodgment, or removal of asbestos in the course of performing repairs, maintenance, renovation, installation, replacement, or cleanup operations, as adopted in §295.33(a) of this title (relating to Adoption of Standards).

(2) Whenever asbestos abatement is the primary or principal purpose of any asbestos activity in a public building it must be performed by an asbestos abatement contractor licensed under these sections.

(3) Those who solicit or conduct asbestos operations and maintenance activities within a public building under contract or other hire agreement must be licensed as asbestos abatement contractors or asbestos O&M contractors.

(4) Employees who perform asbestos O&M activities for asbestos abatement contractors or asbestos O&M contractors must be registered as asbestos abatement workers, and under the supervision of employees who are trained and licensed as asbestos O&M supervisors or asbestos abatement supervisors.

(5) EPA regulatory requirements for small-scale, short duration activities affecting asbestos are explained in detail in 40 CFR, Part 763, Appendix B to Subpart E, as amended. The same regulatory requirements of OSHA for these activities are explained in 29 CFR §1926.1101. The restricted asbestos activities of licensed O&M contractors, O&M supervisors, and asbestos workers shall be confined to the work practices and procedures therein.

(c) Fee. The fee for an initial application or annual renewal shall be $120. Licenses are valid for a period of one year, and shall be renewable, as prescribed in §295.38 of this title (relating to Applications and Renewals).

(d) Applications and renewals. These are subject to the provisions of §295.38 of this title (relating to Licensing and Registration: Applications and Renewals). Out-of-state applicants must comply with §295.39 of this title (relating to Licensing and Registration: Out-of-State Applicants).

(e) Qualifications. Applicants for licensing as asbestos operations and maintenance contractors shall provide:

(1) a certificate of training from a training provider approved by or acceptable to the Texas Department of Health (department), indicating successful completion within the past 12 months of the approved training course for asbestos abatement contractors and supervisors or the annual refresher training, as described in §295.64(c) of this title (relating to Training: Required Asbestos Training Courses). An applicant organization shall designate at least one individual as their responsible person who will comply with this training requirement. This person must be responsible for asbestos operations and compliance with all asbestos rules and regulations;

(2) a State of Texas sales tax account number for the applicant organization;

(3) a written respiratory protection plan to be maintained and adhered to during periods of abatement activity;

(4) a description of the protective clothing and respirators which will be used;

(5) a description of the site decontamination procedures;

(6) a description of the procedures for handling waste containing asbestos;

(7) a description of the removal and encapsulation methods;

(8) a description of the air-monitoring procedures;

(9) a description of final cleanup procedures;

(10) a description of the provisions for recordkeeping;

(11) a list of operations and maintenance projects completed in the past year;

(12) a copy of all disposal manifests for projects completed in the past year;

(13) a list of asbestos inspections performed by other agencies;

(14) copies of all citations issued;

(15) proof of successfully passing the department examination for asbestos abatement contractors and supervisors;

(16) a copy of the wallet-size photo-identification card of the responsible person from the training course, as required from all trainers in Texas in accordance with §295.65(f)(2) of this title (relating to Training: Approval of Training Courses). Persons submitting out-of-state training certificates with their applications shall submit the necessary photo-identification they obtain when attending the mandatory course on Texas asbestos rules, as required in accordance with §295.64(h) of this title; and

(17) a current one-inch by one-inch photograph of the face of the responsible person. The photograph submitted to the department for licensing purposes must have a white background.

(f) Responsibilities. O&M contractors who obtain restricted licenses shall be responsible for:

(1) complying with standards of operation, as described in §295.58 of this title (relating to Operations: General Requirements) and §295.59 of this title (relating to Operations: Operations and Maintenance Requirements) and with the plans and specifications for the asbestos activity being performed;

(2) complying with federal standards of operation, including EPA and OSHA regulations, which are adopted by reference, as follows:

(A) OSHA regulations in 29 CFR, §1926.1101(g)(9), titled "Work Practices and Engineering Controls for Class III Asbestos Work"; or

(B) EPA regulations in 40 CFR, Part 763, Subpart E, Appendix B, titled "Work Practices and Engineering Controls for Small-Scale, Short-Duration Operations, Maintenance and Repair (O&M) Activities Involving ACM";

(3) employment of at least one licensed operations and maintenance (O&M) supervisor (restricted) to supervise or perform operations or maintenance activities. An individual licensed as an asbestos abatement supervisor may be substituted for the O&M supervisor. Employees who are registered asbestos abatement workers shall perform O&M activities only under the direct supervision of either category of supervisors named in this section;

(4) complying with recordkeeping requirements, both the central office and work site locations, as described in §295.62 of this title (relating to Operations: Recordkeeping);

(5) complying with the requirement to notify the department about impending abatement projects, changes requiring re-notification, and emergency notification, as described in §295.61 of this title (relating to Operations: Notification);

(6) complying with the requirement to supply and train employees who perform asbestos-related activities in the use of personal protection equipment, and to maintain the current training status of each employee according to §295.64 of this title (relating to Training: Required Asbestos Training Courses);

(7) acquiring and maintaining in good working condition and free of asbestos contamination the necessary equipment for performing O&M activities, as prescribed by the department;

(8) assisting department personnel in the discharge of their official duties to conduct inspections and investigations, as described in §295.68 of this title (relating to Licensing Operations: Inspection and Investigations); and

(9) providing for the proper temporary storage and for the final disposal of waste asbestos, which must be disposed of within 30 days of project completion or when receiving container is full, whichever is sooner.

(g) Prohibitions. Asbestos O&M licensees shall not engage in any activity for which the primary purpose is asbestos abatement.

§295.45.Licensure: Asbestos Abatement Contractor.

(a) Licensing requirement. Persons must be licensed as asbestos abatement contractors in compliance with these sections to engage in asbestos abatement or removal in a public building. This requirement does not apply to the removal of asbestos samples taken during an inspection or survey by someone licensed to inspect.

(b) Licensee authorization. Asbestos abatement contractor licensees are specifically authorized to employ asbestos abatement supervisors and asbestos abatement workers who are currently licensed under these sections to carry out asbestos abatement or removal procedures. They may employ licensed operations and maintenance (O&M) supervisors for building O&M activities, or as workers. Licensees are cautioned to observe the prohibited acts in §295.37 of this title (relating to Licensing and Registration: Conflict of Interests).

(c) Fee. The fee for an initial application or for an annual renewal of the license for an asbestos abatement contractor shall be $500.

(d) Applications and renewals. Applications shall be submitted as required by §295.38 of this title (relating to Licensing and Registration: Applications and Renewals). Out-of-state applicants must comply with §295.39 of this title (relating to Licensing and Registration: Out-of-State Applicants).

(e) Qualifications. Applicants for licensing as asbestos abatement contractors shall provide:

(1) a certificate of training from a training provider approved by or acceptable to the department, indicating successful completion within the past 12 months of the approved training course for asbestos abatement contractors and project supervisors or the continuing annual refresher training, as described in §295.64(c) of this title (relating to Training: Required Asbestos Training Courses). An applicant shall designate at least one individual for the purpose of complying with this training requirement. This individual must be responsible for asbestos operations and compliance with all asbestos rules and regulations;

(2) if the applicant is situated outside the State of Texas, a certificate of authority issued by the Secretary of State, authorizing the corporation to do business in the state;

(3) a State of Texas sales tax account number for the applicant organization;

(4) evidence of asbestos abatement liability insurance as required in §295.40 of this title (relating to Licensing and Registration: Insurance Requirements), in the amount of $1 million, when doing work for hire;

(5) a written respiratory protection plan to be maintained and adhered to during periods of abatement activity;

(6) a description of the protective clothing and respirators which will be used;

(7) a description of the site decontamination procedures;

(8) a description of the procedures for handling waste containing asbestos;

(9) a description of the removal and encapsulation methods;

(10) a description of the air-monitoring procedures;

(11) a description of final cleanup procedures;

(12) a description of the provisions for recordkeeping;

(13) a list of abatement projects completed in the past year;

(14) a copy of all disposal manifests for projects completed in the past year;

(15) a list of asbestos inspections performed by other agencies;

(16) copies of all citations issued;

(17) proof of successfully passing the department examination for asbestos contractors, if required;

(18) a copy of the wallet-size photo-identification card of the responsible person from the training course, as required from all trainers in Texas in accordance with §295.65(f)(2) of this title (relating to Training: Approval of Training Courses). Persons submitting out-of-state training certificates with their applications shall submit the necessary photo-identification they obtained when attending the mandatory course on Texas asbestos rules, as required in accordance with §295.64(h) of this title; and

(19) a current one-inch by one-inch photograph of the face of the responsible person. The photograph submitted to the department for licensing purposes must have a white background.

(f) Responsibilities. The asbestos abatement contractor shall be responsible for:

(1) standards of operation, including Environmental Protection Agency (EPA) and Occupational Safety and Health Administration of the United States Department of Labor (OSHA) regulations, referenced in §295.33 of this title (relating to Adoption by Reference of Federal Standards);

(2) additional work practices, as described in §295.60 of this title (relating to Operations: Abatement Practices and Procedures);

(3) recordkeeping requirements, at both central office and work site locations, as found in §295.62 of this title (relating to Operations: Recordkeeping);

(4) required notification to the department about impending abatement projects, changes requiring re-notification, and emergency notifications, as described in §295.61 of this title (relating to Operations: Notifications);

(5) the requirement to supply and train employees who perform asbestos-related activities in the use of personal protection equipment, and to supervise their compliance;

(6) maintenance of the current training status of each employee, as described in §295.64 of this title (relating to Training: Required Asbestos Training Courses), and the annual physical examinations;

(7) standards and practices for O&M activities, as conducted by a contractor, as described in §295.59 of this title (relating to Operations: Operations and Maintenance (O&M) Activities);

(8) assisting department personnel in the discharge of their official duties to conduct inspections and investigations, as described in §295.68 of this title (relating to Compliance: Inspections and Investigations);

(9) maintenance of liability insurance, as described in §295.40 of this title (relating to Licensing and Registration: Insurance Requirements);

(10) proof of workers' compensation insurance issued by a company licensed to do business in this state, and written in this state on a Texas form, or evidence of self-insurance, if workers' compensation insurance is required by the specifications or owner; see §295.34(b)(4) of this title; and

(11) providing for the proper temporary storage and for the final disposal of waste asbestos within 30 days of project completion or when receiving container is full, whichever is sooner.

§295.46.Licensure: Asbestos Abatement Supervisor.

(a) Licensing requirement. An individual must be licensed as an asbestos abatement supervisor in compliance with these sections to engage in the supervision of an asbestos abatement project conducted in a public building. Such licenses are valid for a period of one year from the effective date and shall be renewable.

(b) Fee. The fee for an initial application or for an annual renewal of the license for an asbestos abatement supervisor shall be $300.

(c) Applications and renewals. Applications shall be submitted as required by §295.38 of this title (relating to Licensing and Registration: Applications and Renewals). Out-of-state applicants must comply with §295.39 of this title (relating to Licensing and Registration: Out-of-State Applicants).

(d) Qualifications. Applicants for licensing as asbestos abatement supervisors are required to provide:

(1) written documentation of at least 90 days of verifiable work experience as a trained and registered worker performed within the past 24 months. Qualifying experience includes:

(A) project site preparation and establishing the abatement containment for friable asbestos-containing building material (ACBM);

(B) use of respirators and protective equipment, personal hygiene, decontamination procedures, interpretation of air sampling results, and methods to reduce airborne fiber levels;

(D) handling of waste asbestos as part of an abatement project;

(E) removal, enclosure, or encapsulation of asbestos;

(F) work performed in an administrative capacity relating to asbestos abatement projects such as project manager, consultant, or designated person may be accepted as qualifying experience;

(G) experience as an asbestos air monitoring technician, which includes personal air sampling, regulated-area airborne asbestos sampling, aggressive sampling for final cleanup, plus on-site project record keeping documenting daily operations, controlling entry and exit from the containment, etc., may be accepted as qualifying experience, subject to time-period limitations, minimum number of abatement projects (five), or work experience. No more than 30 days may be counted as qualifiable experience under this category;

(H) work performed as an asbestos abatement supervisor or worker licensed in another state; and

(I) the burden of proof for all points of the qualifying experience is on the individual applicant. Applicants for abatement supervisor licenses must furnish contacts or sources that can fully verify the documented experience. Descriptions of abatement projects are not acceptable if the personal involvement of the applicant cannot be determined by the reviewer. If, in the opinion of the reviewing staff members, applicant experience cannot be properly and sufficiently verified, such experience must be rejected;

(2) a certificate of training from a training provider approved by or acceptable to the Texas Department of Health (department) indicating successful completion within the past 12 months of the approved course for abatement contractors and supervisors, or the current annual refresher training, as described in §295.64(c) of this title (relating to Training: Required Asbestos Training Courses);

(3) a physician's statement of the required physical examination done within the past year as described in §295.42(e)(2) of this title (relating to Registration: Asbestos Abatement Workers) and submitted on the department "Physician's Written Statement" form only;

(4) a copy of the wallet-size photo-identification card from the training course as required from all trainers in Texas in accordance with §295.65(f)(2) of this title (relating to Training: Approval of Training Courses). Persons submitting out-of-state training certificates with their applications may obtain the necessary photo-identification when attending the mandatory course on Texas asbestos rules, as required in accordance with §295.64(h) of this title;

(5) a current one-inch by one-inch photograph of the face. The photograph submitted to the department for licensing purposes must have a white background; and

(6) proof of successfully passing the department examination for asbestos contractors and supervisors, if required.

(e) Responsibilities. The asbestos abatement supervisor shall:

(1) comply with standards of operation, including Environmental Protection Agency (EPA) and Occupational Safety and Health Administration of the United States Department of Labor (OSHA) regulations, which have been adopted by reference in §295.33 of this title (relating to Adoption by Reference of Federal Standards);

(2) comply with additional work practices, as described in §295.60 of this title (relating to Operations: Abatement Practices and Procedures);

(3) maintain records at both the central office and the work site locations, as described in §295.62 of this title (relating to Operations: Recordkeeping);

(4) supply personal protection equipment and train employees who perform asbestos-related activities in the use of equipment, and to supervise their compliance;

(5) comply with standards and practices for O&M activities, as conducted for hire, according to §295.59 of this title (relating to Operations: Operations and Maintenance (O&M) Activities); and

(6) cooperate with department personnel in the discharge of their official duties to conduct inspections and investigations, as described in §295.68 of this title (relating to Compliance: Inspection and Investigations).

(f) Other duties. Abatement supervisors may also assume the duties of asbestos abatement workers or perform O&M activities affecting asbestos materials.

§295.47.Licensure: Individual Asbestos Consultant.

(a) Licensing requirements. An individual must be licensed as an asbestos consultant to design asbestos abatement projects. A company employing an individual asbestos consultant may not hire an inspector, project manager, air monitoring technician, or another individual asbestos consultant without obtaining an asbestos consultant agency license.

(1) Asbestos abatement project design includes the survey of public buildings for asbestos-containing building material (ACBM); the evaluation and selection of appropriate asbestos abatement methods; project layout; the preparation of plans, specifications and contract documents; and the review of environmental controls, abatement procedures and personal protection equipment to be employed at any time during the asbestos abatement activity, from the start through the completion dates of the project. A consultant may be hired by a building owner or the owner's agent to perform asbestos project management. If performing asbestos project management, the consultant is responsible to ensure proper procedures are used from the time of arrival of the abatement contractor on site through the completion of the removal of the containment and the departure of the contractor from the project site. Alternative control methods as referred to in 29 CFR §1926.1101(g)(6), such as dry removal or no negative air, shall be reviewed and certified in writing as at least as protective of the public health as the standard method described in §296.60 by a Certified Industrial Hygienist (CIH) or a Professional Engineer (PE) licensed in Texas and shall be approved in writing by the Chief of the Asbestos Programs Branch, Toxic Substances Control Division, prior to the start of abatement. The department will respond within 30 days of the department receiving the alternative control method with approval, notification of deficiencies, or denial.

(2) If an asbestos abatement project includes alterations to a building's structure, its electrical, mechanical, safety systems, or their components, a licensed individual consultant in conjunction with or who is a licensed Professional Engineer (PE) in Texas must prepare the appropriate plans and specifications as required by the Texas Engineering Practice Act, Article 3271a and the rules of the Texas State Board for Registration for Professional Engineers in addition to the requirement of paragraph (1) of this subsection.

(b) Scope: Individual licenses. In addition to the design of asbestos abatement projects, individual asbestos consultants are licensed to provide:

(1) asbestos surveys and assessment of the condition of ACBM;

(2) asbestos management planning, including response actions, instructions, and periodic surveillance recommendations for the control of asbestos and the conduct of operations and maintenance (O&M) programs;

(3) the collection of bulk material samples, airborne substance samples, and the planning of sampling strategies;

(4) owner-representative services for asbestos abatement projects or O&M programs, including air monitoring and project management;

(5) consultation regarding compliance with various regulations and standards, recommending abatement options, and preparations for asbestos abatement projects, specifically including technical specifications and contract documents; and

(6) the selection, fit testing, and appropriate use of personal protection equipment, and the development of engineering controls for asbestos-related activities.

(c) Fees. The fee for initial application or for annual renewal of license for asbestos consultant individuals shall be $300.

(e) Eligibility for licensing. Verifiable evidence of current eligibility must be submitted with all applications for licensing as an individual asbestos consultant, which includes any one of the following:

(1) current registration in the State of Texas as an architect or professional engineer; or

(2) current highest full-qualification memberships in a national professional organization devoted to technical proficiency in environmental or occupational health protection, which includes:

(A) a published code of ethics;

(B) administration by an active board of directors; and

(C) admission requirements that specify college courses and other training, a bachelor's or higher degree, at least three years' experience in specified fields, and a qualification examination (examples include the American Academy of Industrial Hygiene and the Board of Certified Safety Professionals); or

(3) possession of a bachelor's degree in architecture, engineering, physical or natural science from an accredited four-year college or university, and including four years' experience in areas affecting environmental or occupational health matters.

(f) Qualifications. To qualify as an individual asbestos consultant, individuals shall provide:

(1) verifiable documentation of their asbestos-related activity in conjunction with at least six asbestos abatement projects covering a period of at least a year within the past seven years. All asbestos work must be documented as having been performed under the applicable licensed or accredited rules or regulations;

(2) a physician's statement of the required physical examination done within the past year as described in §295.42(e)(2) of this title (relating to Registration: Asbestos Abatement Workers) and submitted on the Texas Department of Health (department) "Physician's Written Statement" form only;

(3) proof of having successfully completed the following training courses or the necessary annual refresher training within the past 12 months at an approved training facility:

(A) the approved training course for abatement project designers, or the current annual refresher, according to §295.64(b) of this title (relating to Training: Required Asbestos Training Courses);

(B) a modified three-day training course in sampling techniques and use of monitoring equipment, as required for air monitoring technician, or the current annual refresher training according to §295.64(g) of this title (relating to Training: Required Asbestos Training Courses). The initial course is not required of certified industrial hygienists; however, the refresher is required for license renewal or any subsequent reapplication for this license; and

(C) training in asbestos surveys, as required for both licensed asbestos building inspectors and management planners, or the current annual refresher, according to §295.64(e) and (f) of this title (relating to Training: Required Asbestos Training Courses).

(4) a copy of the wallet-size photo-identification card from the training course as required from all trainers in Texas in accordance with §295.65(f)(2) of this title (relating to Training: Approval of Training Courses). Persons submitting out-of-state training certificates with their applications may obtain the necessary photo-identification when attending the mandatory course on Texas Asbestos rules, as required in accordance with §295.64(h) of this title (relating to Training: Required Asbestos Training Courses);

(5) a current one-inch by one-inch photograph of the face. The photograph submitted to the department for licensing purposes must have a white background; and

(6) proof of successfully passing the department examination for consultant/project designer, if required.

(g) Insurance. A licensed individual asbestos consultant performing work for hire must obtain professional liability coverage in the amount of $1 million for errors and omissions, or be covered under the consultant's employer's policy, as specified in §295.40 of this title (relating to Licensing and Registration: Insurance Requirements).

(h) Responsibilities. The responsibilities of licensed asbestos consultants shall include the following:

(1) preserve public health and diminish or eliminate hazards or potential hazards caused by the presence of ACBM in public buildings;

(2) provide professional services to the building owner or management concerning asbestos building surveys, assessment of conditions of materials, planned operations and maintenance, compliance with work practices and standards;

(3) evaluate possible asbestos abatement projects and prepare plans, specifications, schedules, and contract options for abatement projects;

(4) represent the interests of the building owner during the conduct of an asbestos abatement project, including consultation with the abatement contractor personnel, requiring compliance with regulations and specifications, requiring remedy of infractions, providing monitoring services, maintaining progress records and photographs as necessary, waste disposal, designating in writing a project manager and specifying the manager's responsibilities and authority, and providing written assurance to the building owner or operator of the final clearance of the project; and

(5) advise on the selection and use of appropriate personal protective equipment for all asbestos-related activities.

(i) Signature authority. All asbestos abatement plans and specifications must be signed on every page that addresses the scope of work and all drawings related to the abatement work. The cover page shall also include the consultant's signature, license number and license expiration date. The plans and specifications bearing the consultant's original signature shall be provided to the building owner prior to the start of the asbestos abatement. Plans and specifications that are used by another consultant, or consultant agency, to monitor a project, shall be reviewed, deletions and/or additions made, and signed in the same manner, indicating acknowledgment of their adequacy and the assumption for the responsibility related to the content contained therein.

§295.48.Licensure: Asbestos Consultant Agency.

(a) Scope: Asbestos consultant agency licenses. A company, employing an individual asbestos consultant and one or more additional asbestos consultants, inspectors, project managers, or air monitor technicians must be licensed as an asbestos consultant agency. Consultant organizations desiring to be licensed as asbestos consultant agencies shall designate one or more individuals licensed as asbestos consultants as their responsible persons, who shall be either principals or employees, and who shall have responsibility for the organization's asbestos activity.

(b) Authorization and conditions. A licensed asbestos consultant agency is specifically authorized to employ asbestos consultants, asbestos project managers, asbestos inspectors and management planners, and air monitoring technicians who are currently licensed under these rules to assist in the conduct and fulfillment of the agency's asbestos consultation activity, as necessary. As a condition of licensure, an asbestos consultant agency must notify the department in writing of the addition or deletion of the designated individual asbestos consultant within 10 days of any changes.

(c) Fee. The fee for an initial application or for an annual renewal of license for an asbestos consultant agency is $200.

(d) Applications and renewals. Applications and renewals shall be submitted as required by §295.38 of this title (relating to Licensing and Registration: Applications and Renewals). Out-of-state applicants must comply with §295.39 of this title (relating to Licensing and Registration: Out-of-State Applicants).

(e) Qualifications. Applicants for licensing as an asbestos consultant agency shall submit as applicable:

(1) professional liability insurance coverage for errors and omissions in the amount of $1 million to cover the asbestos consultants and inspectors in its employ; and

(2) if the applicant is situated outside the State of Texas, a certificate of authority issued by the Texas Secretary of State, authorizing the corporation to do business in the state.

(f) Responsibilities. A licensed asbestos consultant agency shall be responsible for:

(1) employing generally accepted principles and practices in designing asbestos abatement projects;

(2) monitoring and observing asbestos abatement projects for general compliance with the contract documents, specifications, and relevant regulations;

(3) reviewing asbestos disposal documentation to account for and confirm adequate waste disposal; and

(4) complying with the responsibilities for the individual license as listed in §295.47(h) of this title (relating to Licensure: Individual Asbestos Consultant).

§295.53.Licensure: Asbestos Management Planner Agency.

(a) Licensing. A company, employing an individual management planner and one or more additional management planners or inspectors must be licensed as an asbestos management planner agency. An applicant desiring to be an asbestos management planner agency shall designate one or more individuals licensed as asbestos management planners as their responsible persons, who shall have responsibility for the asbestos activity.

(b) Scope. The agency may perform all responsibilities allowed an individual management planner and may also perform surveys if the appropriate individuals are licensed to do so.

(c) Authorization and conditions. A licensed management planner agency is specifically authorized to employ asbestos management planners and asbestos inspectors who are currently licensed under these sections to assist in the conduct and fulfillment of the agency's asbestos management planning activity, as necessary. As a condition of licensure, an asbestos management planner agency must comply with the following:

(1) any office, established within the state, that conducts asbestos management planning activities must have at least one licensed asbestos management planner in residence who is responsible for such activities. Offices that do not conduct asbestos management planning activities and do not advertise such services are exempt from this requirement;

(2) notify the department in writing of any additions or deletions of responsible individual asbestos management planners within 10 days of such occurrences;

(3) refrain entirely from asbestos management planning activity at any office during any period without the active employment of at least one responsible individual licensed as an asbestos management planner at that location; and

(4) refrain entirely from creating a conflict of interest by not performing as an asbestos abatement contractor doing asbestos abatement or operations and maintenance activities and acting as a management planner preparing the survey or management plans for the same public building project.

(d) Fee. The initial and renewal fee for a management planner agency is $200.

(e) Applications and renewals. Applications and renewals shall be submitted as required by §295.38 of this title (relating to Licensing and Registration: Applications and Renewals). Out-of-state applicants must comply with §295.39 of this title (relating to Licensing and Registration: Out-of-State Applicants).

(f) Qualification for licensing. Applicants for licensing as an asbestos management planner agency shall submit the following:

(1) professional liability insurance coverage for errors and omissions in the amount of $1 million to cover the asbestos management planners and inspectors in its employ; and

(2) if the applicant is situated outside the State of Texas, a certificate of authority issued by the Texas Secretary of State, authorizing the corporation to do business in this state.

(g) Responsibilities. A licensed asbestos management planner agency shall be responsible for:

(1) employing generally accepted principles and practices in performing asbestos surveys and producing asbestos management plans;

(2) complying with standards of operation, as described in §295.58 of this title (relating to Operations: General Requirements); and

(3) complying with the responsibilities for the individual licenses as listed in §295.50 of this title (relating to Licensure: Asbestos Inspector) and §295.51 of this title (relating to Licensure: Individual Asbestos Management Planner).

§295.54.Licensure: Asbestos Laboratory.

(a) Licensing requirement. A person must be licensed in compliance with the provisions of this section to provide polarized-light microscopy (PLM), phase contrast microscopy (PCM), or transmission electron microscopy (TEM) analysis of bulk or air samples collected in public buildings. Branch offices, which perform laboratory analysis, must fulfill the same equipment and operational standards as the main office which has been licensed, and must be separately licensed and accredited in accordance with subsection (d) of this section for the type of analysis they will be performing. The license may not be transferred to another company which has bought the licensed laboratory. A new license must be applied for within 60 days of change of ownership. Laboratories which change their name must notify the department within 60 days of the change, send a processing fee of $20 and a name change application. An applicant desiring to be an asbestos laboratory shall designate one or more individuals as their responsible persons, who shall have responsibility for the asbestos activity.

(b) Fee. The fee for an initial application or for an annual renewal of the license for an asbestos laboratory shall be $200.

(c) Applications and renewals. Applications shall be submitted as required by §295.38 of this title (relating to Licensing and Registrations: Applications and Renewals). Out-of-state applicants must comply with §295.39 of this title (relating to Licensing and Registration: Out-of-State Applicants).

(d) Laboratory accreditation and proficiency. To be eligible for licensure, applicants must submit evidences of accreditation or proficiency of at least one of the following:

(1) accreditation by the National Voluntary Laboratory Accreditation Program (NVLAP) for bulk analysis by polarized-light microscopy;

(2) accreditation by the NVLAP for analysis of airborne asbestos by transmission electron microscopy;

(3) accreditation as an industrial hygiene laboratory by the American Industrial Hygiene Association (AIHA) and participation in the Proficiency Analytical Testing (PAT) program for analysis of airborne fibers by phase-contrast microscopy (PCM);

(4) proficiency according to the standards of the AIHA PAT Program, which includes quarterly proficiency testing for airborne fibers by PCM and a quality assurance/quality control program as required by the NIOSH method 7400, issue 2, August 1994; or

(5) accreditation of the individual laboratory analysts through the AIHA Asbestos Analyst Registry (AAR) and a quality assurance/quality control program as required by the NIOSH method 7400, issue 2, August 1994.

(e) Limitations. Limits which are placed on the type of services that an asbestos laboratory can perform are as follows.

(1) A laboratory may analyze bulk samples only if so accredited by NVLAP.

(2) A laboratory may analyze samples by transmission electron microscopy (TEM) only if accredited by NVLAP.

(3) A laboratory enrolled in the AIHA PAT program may perform phase-contrast microscopy analysis under controlled laboratory conditions or under field conditions, if quality-control analysis is performed on at least 10% of the samples analyzed. Records must be kept in the laboratory indicating which samples were used to meet this 10% quality-control analysis. All phase-contrast analysis shall be performed by an analyst who has received National Institute for Occupational Safety and Health (NIOSH) 582 or NIOSH 582 equivalent training. The laboratory must maintain individual records for each analyst as required by NIOSH 7400 to document the individual analyst's coefficient of variation. These records must be available on site for review by the department.

(f) Qualifications. Applicants for licensing as an asbestos laboratory shall submit as applicable:

(1) evidence of laboratory accreditation and most recently available results of PAT rounds for PCM and/or most recently available results of NVLAP sponsored proficiency tests for TEM and/or PLM in accordance with subsection (d) of this section;

(2) if the applicant is situated outside the State of Texas, a certificate of authority issued by the Texas Secretary of State, authorizing the corporation to do business in the state; and

(3) evidence of professional liability insurance for errors and omissions in the amount of at least $1 million when doing work for hire as required by §295.40 of this title (relating to Licensing and Registration: Insurance Requirements).

§295.55.Licensure: Asbestos Training Provider.

(a) Licensing requirement. A person must be licensed as an asbestos training provider in accordance with these sections to offer and to conduct asbestos training for fulfillment of specific training requirements that are prerequisite to licensing or registration by the Texas Department of Health (department).

(b) Fee. The fee for an initial application or for annual renewal of the asbestos training provider license shall be $500.

(d) Qualification. To qualify for a license, an applicant must demonstrate to the department that they meet the applicable requirements. Documentation required of applicants for licensing as asbestos training providers is as follows.

(1) Organization. There shall be a clear written description of the organization, including the address of its central office and the names and addresses of its principals, and a statement of intent concerning the courses and services to be offered. If the organization is affiliated with or the subsidiary of another, a complete description of this arrangement is also required. The organization shall designate a staff member as director in charge of asbestos training.

(2) Equipment. There shall be a description of the items of instructional equipment and accessories available for the conduct of courses. The provider shall furnish adequate equipment in good working order for each training session.

(3) Advertising. Printed bulletins, brochures, or other promotional literature must specify course prerequisites for admission, the content of the course, and requirements for successful completion.

(4) Refund and cancellation policy. Each training provider must have a written policy concerning refunds and cancellations in both Spanish and English that is made available to applicants prior to acceptance of fees for enrollment, and shall include the procedure for notification by the trainee desiring to cancel.

(5) Information requirements. The training provider shall discuss and inform each prospective trainee of the requirements for the category of license being sought, and of necessary qualifications he/she must have. The training provider shall refund any course-related fees a prospective trainee may have incurred due to a failure to provide this information to the student. Necessary qualifications include the following.

(A) Individuals not eligible for employment in the United States will not be licensed.

(B) Eligibility for refresher training courses is dependent on the effective date of the initial training.

(C) Certain asbestos training courses require the successful completion of other training courses as a condition for admission.

(6) Maximum trainee-instructor ratio. The maximum number of trainees in a lecture session shall be 40. Hands-on training groups shall have no more than 15 trainees and must be so arranged that each trainee is given individual attention.

(7) Attendance and course completion standards. Attendance and course completion standards are as follows.

(A) Attendance records in asbestos training courses shall be taken at the beginning of each four-hour segment of course instruction. Control of exits and entrances shall be maintained. A master attendance record shall be maintained for each session.

(B) A trainee is not eligible to complete a given course if more than 10% of the session has been missed, and the qualifying exam shall not be offered in such instances. The 10% includes being absent from the course at times other than allotted break periods. The records of that session shall be marked by the instructor to this effect.

(C) A training provider must certify each examination taken by a trainee as to whether a minimum score of 70% correctly answered questions was achieved. The training provider shall have a written policy concerning the administration of written examinations including allowing only one written re-examination per student for each course. The use of the same questions for both the original and re-examination is not allowed. Oral examinations are not allowed although the written examination questions and possible answers may be read to a student who must mark his answer on an answer sheet. If a student fails the written re-examination the student will have to repeat the course and pass the new examination.

(8) Training facilities. Training facilities used will be those commonly used and accepted as classrooms or conference rooms. Classrooms must have restrooms available for the students. Unacceptable classrooms are rooms which by their arrangement or contents would readily distract students, or rooms open to the general public.

(9) Training requirements. A training provider must provide each course as a separate entity, as follows.

(A) Initial training courses shall not be combined with refresher courses.

(B) Courses shall be conducted in only one language and not combined with courses taught in another language, i.e., English or Spanish. All courses shall be taught in English, except the worker course. The worker course may be taught in another language, provided the instructor is fluent in the language, and books, training materials, and examinations are in the same language.

(C) Basic or refresher courses shall be conducted in only one discipline and not be combined with courses of other disciplines, i.e., an abatement worker course and a contractor/supervisor course cannot be taught as a combined course. This prohibition against combined training applies to hands-on training sessions as well as other aspects of the course.

(10) Methods of instruction. Standard methods of instruction are as follows.

(A) At least 50% of the classroom instruction and 100% of the hands-on instruction will be conducted with instructors presenting the material.

(B) Training films and video tapes may be used to enhance understanding, but they may not be used as a substitute for the formal class conducted by a certified instructor or the Model Accreditation Program required hands-on training. Any of these materials must support and convey the understanding of the subject to the student.

(11) Hours of operation. Classes will be conducted during scheduled hours as noted in subsection (e)(2) of this section. More than eight hours of training in a calendar day shall not be authorized.

(12) The applicant must submit the following with the application:

(A) publications listed in §295.65(d)(3) of this title (relating to Training: Approval of Training Courses); and

(B) if the applicant is a resident outside the State of Texas, a certificate of authority issued by the Texas Secretary of State authorizing the corporation to do business in the state.

(e) Conditions of issuance. The following conditions and agreements shall apply to issuance of licenses under this section.

(1) There shall be an agreement to send at least one course instructor to any meeting held by the department for the purpose of ensuring quality training courses in asbestos abatement and related topics. There will be no more than two such meetings per year.

(2) Course schedules shall be provided to the department 14 calendar days prior to the start of any course on the schedule. Requests for exceptions to the 14 calendar day rule shall be submitted in writing to the Asbestos Programs Branch Training Coordinator along with a written justification why the notice could not be submitted earlier. Approval for shorter notice will be granted, if appropriate, in writing. The minimum time for course notification, when an exception is granted, is 72 hours prior to the start of the course. If there is a cancellation of a scheduled course, the department shall be notified in writing at least 24 hours in advance. Facsimiles of cancellation notices will be accepted, but the training provider must follow-up with an original cancellation notice with the signature of an authorized representative of the training provider. In the event the instructor cannot provide written notice of cancellation at least 24 hours in advance, the instructor shall notify the department not later than two hours after the scheduled class start time and provide a written explanation of the cancellation.

(3) There shall be a description and an example of numbered certificates issued to students who attend the course and pass the examination. The uniquely numbered certificate must be in conformance with 40 CFR, Part 763, Subpart E, Appendix C, and must show the school's name, address, telephone number, name of accredited person, discipline of the training course completed, name of instructor, dates of the training course, expiration date of one year after the date upon which the person successfully completed the course or examination, as applicable, and a statement that the student passed the examination and the date it was taken. The certificate must include the signature of the instructor and the signature of the course director, principal officer, owner, or CEO, and a statement that the person receiving the certificate has completed the requisite training for asbestos accreditation under TSCA Title II. Refresher certificates require all of the above except the examination date.

(4) Trainers may present other courses or seminars relevant to asbestos activities including, but not limited to, courses on respirator training and compliance, airborne sample analysis (NIOSH 582 or equivalent), sample analysis by polarized light microscopy, construction safety (29 CFR Part 1926), hazard communications (Texas or OSHA), hazardous materials response worker (29 CFR §1910.120), local education agency-asbestos coordinator, two-hour and 16-hour AHERA awareness course or advanced hands-on for worker and supervisor, or floor tile removal. Such courses will not be accredited by the department. Any federal accreditation requirements will be complied with by the provider. Such courses and seminars may not be used for refresher training credit.

(f) Approval of course instructors and guest speakers. Course instruction must be provided by EPA or State-approved instructors. The training provider shall submit a resume of each instructor and guest speaker who will participate in the conduct of any asbestos training course to be approved by the department. Prior approval of instructors and guest speakers is required. The training provider will notify the department of additions and deletions to their instructor roster within 15 working days of actual occurrence.

(1) Instructor qualifications. Training instructors shall be qualified in any one of the categories in subparagraphs (A)-(D) of this paragraph. Training qualifications must be fully documented, and verifiable by the department. Instructors shall have current accreditation training from an Environmental Protection Agency (EPA) approved course for the discipline in which the instructor desires to teach. Instructors shall have current training from a Texas Department of Health (department) approved course for Air Monitor Technician (AMT) to teach the AMT course. The categories include:

(A) at least two years of actual hands-on experience in asbestos-related activities (abatement or consulting) with current training accreditation from Environmental Protection Agency (EPA) asbestos courses for the subject which the instructor will teach, and a high school diploma and completion of at least one teacher education course in vocational or industrial teaching;

(B) graduation from an accredited college or university with a bachelor's degree in natural or physical sciences or a related field, with one year's hands-on experience in asbestos-related activities (abatement or consulting), and current accreditation in at least one EPA asbestos course;

(C) at least three years teaching experience in Hazmat or HazWoper or EPA approved asbestos courses, and completion of one or more teacher education courses in vocational or industrial teaching from an accredited junior college or university; or

(D) a vocational teacher with certification from the Texas Education Agency with one year's hands-on experience in asbestos related activities (abatement or consulting) and current accreditation in at least one EPA asbestos course.

(2) Professional references. Each instructor application shall include three professional references attesting to teaching experience and asbestos-related qualifications. No more than one reference will be accepted from an employee of the same company as the applicant. References will be submitted on a form provided by the department which will be completed by the person providing the reference and mailed directly to the department for inclusion with the instructor application.

(3) Guest speaker qualifications. Guest speakers must be qualified on an individual basis of professional expertise for the purpose of teaching their specialty, such as law, medicine, insurance, etc.

(4) Complete applications. The department shall not accept any instructor or guest speaker application until it is complete. The department shall reject any such application that does not contain sufficient references to be fully verifiable.

(5) Responsibilities. The asbestos training provider shall be responsible for:

(A) complying with standards of operation, as described in §295.64 of this title (relating to Training: Required Asbestos Training Courses);

(B) presenting to students all course material as outlined in syllabus and as represented to the department for approval;

(D) cooperating with department personnel in the discharge of their official duties to conduct inspections and investigations as described in §295.68 of this title (relating to Compliance: Inspections and Investigations); and

(E) taking an aggressive approach in meeting the needs of the student to include providing course review in preparation for the examination and specialized attention to enhance comprehension.

(6) Revocation or suspension of approval. The department may revoke or suspend instructor approval if field site inspections or classroom audits indicate an instructor is not providing training that meets the requirements of the Model Accreditation Plan or these sections. Training course sponsors shall permit department representatives to attend, evaluate, and monitor any training course instructor without charge. The inspection staff is not required to give advance notice of their inspections.

(g) Record keeping Requirements for Training Providers. All records shall be kept in accordance with §295.62(b) of this title (relating to Operations: Record keeping).

§295.56.Licensure: Asbestos Transporters.

(a) Licensing. A person must be licensed as an asbestos transporter in compliance with these sections to engage in the transport of asbestos removed from a public building. The requirement for licensure does not apply to the removal of flooring materials done in accordance with §295.36 of this title (relating to Licensing and Registration: Exemption; Emergency).

(b) Fee. The fee for an initial application or for an annual renewal of the license for an asbestos transporter shall be $200.

(d) Qualifications. To qualify for a transporter license, an applicant must submit the following:

(1) if the applicant is situated outside the State of Texas, a certificate of authority issued by the Texas Secretary of State authorizing the corporation to do business in the state;

(2) pollution liability insurance in the amount of $1 million as required by §295.40 of this title (relating to Licensing and Registration: Insurance Requirements), when transporting asbestos-containing building material (ACBM) for hire; and

(3) a copy of the emergency response plan in accordance with 29 CFR §1910.120(q)(1).

(e) Responsibilities. An asbestos transporter shall:

(1) comply with federal regulations in 49 Code of Federal Regulations (CFR), Parts 100-199 titled "Hazardous Materials Regulations," 40 CFR, Part 61 titled "National Emission Standards for Hazardous Air Pollutants (NESHAP)," specifically the provisions concerning asbestos transport, and, where applicable, 40 CFR, Part 763, Subpart E, Appendix D, titled "Transport and Disposal of Asbestos Waste";

(2) qualify all employees who will be transporting, loading and unloading asbestos, in accordance with 49 CFR Parts 171-177;

(3) train and supply employees who will handle asbestos with personal protective equipment and training for its use, and supervise their compliance;

(4) establish and maintain records of transporting asbestos to disposal sites, and report annually to the department on the quantity transported to each disposal site destination;

(5) comply with department personnel in the discharge of their official duties to conduct inspections and investigations, as set forth in §295.68 of this title (relating to Compliance: Inspections and Investigations);

(6) train employees in compliance with OSHA regulations in 29 CFR, §1910.120(a)(1)(v) or 49 CFR 172 Subpart H, as applicable, in anticipation of possible spills of asbestos;

(7) ensure asbestos-containing waste material is properly labeled; and

(8) in Texas, deliver all asbestos-containing waste material for disposal to a facility from the approved list provided by the Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087. If transporting out-of-state, follow the regulations of the receiving state.

§295.58.Operations: General Requirements for Public Buildings.

(a) Responsibility. It is the responsibility of owners of public buildings or their designated agents to engage persons licensed under the provisions of these sections to perform any asbestos-related activity.

(b) Supervision.

(1) Every asbestos abatement project undertaken by a licensed contractor in a public building shall be supervised by at least one licensed asbestos abatement supervisor.

(2) Abatement supervisors shall remain on the job site and in immediate contact with those under their supervision during all periods of asbestos abatement activity.

(3) During every day of the asbestos abatement activity, from the start date and through the completion date of the project, an abatement supervisor shall be stationed within the containment area at least 25% of the time for the purpose of supervising the abatement work.

(4) Every small-scale, short-duration maintenance or repair activity that involves asbestos-containing material (ACM) in a public building shall be supervised by at least one restricted-license operations and maintenance (O&M) supervisor. Restricted-activity supervisors shall be at the job site during all periods of asbestos disturbance activity.

(5) Abatement contractors or building management licensees may also employ licensed abatement supervisors to supervise small-scale, short-duration operations and maintenance activities.

(6) Supervisors with either restricted or unrestricted licenses may be employed as asbestos abatement workers.

(7) All licensed supervisors are responsible for respirator fit testing, personal protection of the workers, security, and control of access at the job site.

(8) Supervisors licensed under these sections shall require that operations at the asbestos job site cease whenever hazardous or unlawful situations are detected, so as to effect a remedy.

(c) Employees. Each employee or agent of any licensee who must intentionally disturb, handle, or otherwise work with asbestos-containing building material (ACBM), or who shall engage in an asbestos abatement project, asbestos O&M activities or other asbestos-related activity shall have an annual physical examination, respirator fit-test, be properly equipped and trained, and be licensed or registered in accordance with these sections.

(d) Records. Each licensee shall keep a complete record of each asbestos related activity or operation in public buildings to the extent of his or her participation. Such records shall be kept for 30 years. Each licensee shall also keep a copy of all violations issued against him by the Environmental Protection Agency (EPA), Occupational Safety and Health Administration of the United States Department of Labor (OSHA), or a state agency. All required records shall be made available, upon request, for inspection and review by the department. See §295.62 of this title (relating to Operations: Recordkeeping) for specific requirements.

(e) Compliance inspections. Each licensee shall assist and cooperate with all properly identified representatives of the department in the conduct of asbestos inspections or investigations at all reasonable or necessary times, with or without prior notice. Such inspections may be made at proposed, actual, or former sites of asbestos-related activities, or of the premises, records, equipment and personnel of licensees or applicants, or of those who have held active licenses previously. It is a violation to interfere with or delay an inspection or investigation conducted by a department representative. A licensee may not deny entry to a properly identified representative of the department.

(f) Respiratory protection program. Each employer licensee shall be responsible for establishing and maintaining a written respiratory protection program, as required by OSHA regulations in 29 Code of Federal Regulations (CFR) §1910.134, as amended. Each employer shall maintain a current copy of the respiratory protection program at all project locations. A copy of 29 CFR §1910.134 is not acceptable as a written respiratory protection program. Respirators shall be properly worn at all times in containment during asbestos abatement activity.

(g) Individual respirator fit. The licensee must maintain in safe working condition a sufficient number of respirators of the types and styles approved by the National Institute of Occupational Safety and Health (NIOSH) to meet all anticipated requirements of his/her employees; and any employee whose facial characteristics, hair, mustache, or beard preclude a tight fit of a negative-pressure respirator shall not be allowed to enter the containment of an asbestos operation using this type of respirator.

(h) Sampling for asbestos. Building materials that have not been surveyed in accordance with this subsection and are suspect asbestos-containing material shall be treated as asbestos-containing material. At a minimum, three samples from each homogeneous area must be analyzed to rebut the presence of ACBM for abatement or operations and maintenance (O&M) activities, regardless of the protocol used. A survey performed by a licensed asbestos inspector must use accepted standards such as the Asbestos Hazard Emergency Response Act (AHERA) protocol specified in 40 CFR §§763.85-763.88. Only laboratories licensed by the State of Texas may be used to evaluate samples taken from within public buildings in Texas. Building materials that have not been surveyed in accordance with this subsection and are suspect asbestos-containing material shall be treated as containing asbestos.

(1) Composite sample analysis in a public building is not allowed.

(2) Results obtained by counting of asbestos samples supersede and replace the initial PLM analysis results. Results of TEM/gravimetric analysis of asbestos samples supersede and replace PLM and point counting.

(3) Each sample analyzed by visual PLM as greater than one percent asbestos is regarded as ACBM, unless that sample result is rebutted through additional analysis (i.e., point counting).

(i) Project monitoring. The asbestos consultant shall specify the protocol for monitoring the project. This will include the duties and responsibilities of the project manager and the air monitoring requirements. Only one cassette may be placed on a pump at a time.

(1) Baseline.

(A) The asbestos consultant shall insure that baseline samples are collected. This requirement shall be made a part of the specifications for an asbestos project. Air samples for analysis by Phase-contrast Microscopy will be collected under normal building conditions for any abatement activity prior to the disturbances of asbestos-containing building material (ACBM) as a part of the activity. A minimum of three samples shall be collected on 0.8 micron mixed cellulose ester (MCE) filters loaded in conducting cassettes with extension cowls. Sampling and analysis will be in accordance with the latest edition of NIOSH 7400 protocol, counting rules A. The minimum sample volume will be 1,250 liters.

(B) These samples may be analyzed or archived at the consultant's discretion. The samples shall be preserved for no less than 60 days following achieving clearance.

(2) Ambient.

(A) Ambient samples will be collected every day of the asbestos abatement activity, from the start date and through the completion date of the project and analyzed in accordance with the latest edition of NIOSH 7400 protocol, counting rules A.

(B) Ambient samples will be collected: inside containment; outside containment but inside the building (if applicable); the negative air unit discharge; immediately outside the entrance to the decontamination facility (representative of the air being drawn into the facility); outside the bag out facility; and any other locations required by the specifications.

(3) Clearance.

(A) All project activities, except O&M, shall be cleared by using aggressive air sampling. Aggressive air sampling is the use of an air blower, such as a leaf blower with the force of air unaltered and operating as it comes from the factory, directed at all surfaces in order to cause loose asbestos fibers to become airborne. The maximum levels of residual fibers shall be as cited in subparagraph (C) of this paragraph.

(B) A visual inspection of the abatement area shall be made upon completion of ACBM removal but before the containment is removed to determine if the project has been properly conducted in accordance with the specifications and with applicable state and federal regulations and confirm that all ACBM has been properly removed, encapsulated, or maintained. A final visual will be performed by the asbestos consultant, or project manager delegated by the asbestos consultant, once the abatement contractor has removed all containment and other materials from the project site.

(C) For all projects, samples may be collected and analyzed by NIOSH 7400 protocol, counting rules A, Phase-contrast Microscopy (PCM) as amended. Clearance samples shall be collected at a rate of at least 0.5 less than 16 liters per minute on 0.8 micron MCE filters in conducting cassettes with extension cowls. Minimum sample volume will be 1,250 liters. Clearance will be achieved if no sample is reported greater than 0.01 f/cc by the analysis report from the licensed laboratory. Asbestos Hazard Emergency Response Act (AHERA) protocol will be used in schools. A licensed asbestos consultant shall design the air monitoring scheme and may deviate from this subsection only if public health is maintained in accordance with all regulations. The asbestos consultant shall, upon request by the department, provide documentation and justification to support deviations and must be able to demonstrate that the design meets the requirements and intent of the applicable regulations.

(D) The visual inspection must be conducted by a properly licensed asbestos consultant. The asbestos consultant may delegate the visual inspection responsibility in writing to a licensed asbestos project manager considered experienced enough to properly perform this duty.

(E) All samples, including clearance samples, may be collected by licensed air monitoring technicians or a licensed consultant. The sample pumps will be monitored during the sampling period by the person collecting the samples, or some other means of control will be established to ensure the integrity of the samples and prevent tampering.

(j) Posting of documents. The following documents are required to be posted conspicuously by licensees involved in the project to be visible at the entrance to the regulated area and must not be covered by any other documents:

(1) the asbestos information poster issued by the department; and

(2) copies of any violations issued as evidenced by an order from the federal or state asbestos-regulating authorities within the preceding 12 months from any asbestos project.

(k) Documents required to be on-site are as follows:

(1) all current licenses and registrations, and copies of accreditation certificates, current "Physician's Written Statements", and current respirator fit-test records. The department licensed company is responsible for its employees' documents to be on-site;

(2) EPA "Green Book" for O&M work;

(3) appropriate publications as listed in §295.33 of this title (relating to Adoption by Reference of Federal Standards) for the asbestos activity which is being performed;

(4) a copy of the "Recommended Work Practices for the Removal of Resilient Floor Coverings," published by the Resilient Floor Covering Institute, if removing floor coverings using this method.

(l) Prohibitions.

(1) Solvents with a flash point of 140 degrees Fahrenheit or below shall not be used.

(2) Disposal of improperly labeled or classified asbestos-containing waste material as defined in 40 CFR Part 61, Subpart M is prohibited.

§295.59.Operations: Operations and Maintenance (O&M) Requirements for Public Buildings.

(a) Restrictions. O&M activities involving asbestos-containing building materials (ACBM) are restricted to small-scale, short-duration activities, according to 40 CFR Part 763, Subpart E, Appendix B, titled, "Work Practices and Engineering Controls for Small-Scale, Short-Durations Operations Maintenance and Repair (O&M) Activities Involving ACM," July 1, 1997, as amended. Asbestos O&M licensees shall not engage in any activity for which the primary purpose is asbestos abatement unless otherwise licensed to perform such activity.

(b) Work practices. Work practices shall include the following requirements.

(1) Employers shall be responsible for furnishing and requiring the use of respirators, protective clothing, high-efficiency particulate air filter (HEPA) vacuum machines, glove bags, and other necessary equipment for all who perform O&M activities.

(2) Only licensed persons, responding emergency personnel (police, fire, EMS, etc.), specialists required for assistance as determined by the consultant, or appropriate governmental inspectors are allowed to enter the containment, decontamination, bag-out, and temporary storage areas.

(3) Physical barriers shall be used to limit access to the work area.

(4) A mini-containment shall be constructed for containment of asbestos fibers, or a glove bag technique may be used for removal or repair of ACBM on pipes or ducts as described the references in §295.43(f)(2) of this title (relating to Licensure: Asbestos Operations and Maintenance Contractor (Restricted)).

(5) Asbestos material must be wetted with amended water and remain wet throughout the work operation.

(6) Asbestos exposed as a result of spot repairs shall be suitably enclosed or encapsulated.

(7) HEPA vacuuming or wet cleaning shall be used to decontaminate work areas and equipment until there is no visible debris.

(8) Asbestos shall be double bagged by placing asbestos-containing waste material into bags that meet the dart impact test as specified in §295.60(j)(1) of this title (relating to Operations: Abatement Practices and Procedures for Public Buildings), and shall be disposed of in accordance with §295.60 of this title and 40 CFR Part 61, Subpart M.

(9) Air clearance and visual inspections shall be performed before removing any mini-containment.

(10) The O&M book or manual developed for the building on which O&M is being performed shall be on site during all O&M operations.

§295.60.Operations: Abatement Practices and Procedures for Public Buildings.

(a) General provisions. The following general work practices are minimum requirements for protection of public health, and do not constitute complete or sufficient specifications for an asbestos abatement project. More detailed requirements in plans and specifications for a particular abatement project, or requirements that address the unusual or unique circumstances of a project, may take precedence over the provisions of this section. The specifications written for the abatement project shall also include the required air clearance procedures.

(1) Federal work practices for asbestos abatement are referenced in 40 Code of Federal Regulations (CFR) §61.145, Environmental Protection Agency (EPA) titled "Standard for Demolition and Renovation," as amended.

(2) An asbestos project consultant, who is licensed under §295.47 of this title (relating to Licensure: Individual Asbestos Consultant), may specify work practices that vary from the requirements of this section as long as the work practices specified are at least as protective of public health and are clearly described in the project notification submitted to the Texas Department of Health (department). The burden of proof for establishing equivalent protection rests with the asbestos consultant. Alternative control methods as referred to in 29 CFR §1926.1101(g)(6), such as dry removal or no negative air, shall be reviewed and certified in writing as at least as protective of the public health as the standard method described in this section by a Certified Industrial Hygienist (CIH) or a Professional Engineer (PE) licensed in Texas and shall be approved in writing by the Chief of the Asbestos Programs Branch, Toxic Substances Control Division, prior to the start of abatement. An applicant should allow 30 days from the date of submitting an alternative control method until final department approval or denial is issued.

(3) If asbestos-containing building material (ACBM) is to be removed or encapsulated, it must be within a regulated area.

(4) Only licensed persons, responding emergency personnel (police, fire, EMS, etc.), specialists required for assistance as determined by the consultant, or appropriate governmental inspectors are allowed to enter the containment, decontamination, bag-out, and temporary storage areas.

(b) Critical barriers. Regulated areas within which asbestos abatement is to be conducted shall be separated from adjacent areas by impermeable barriers such as plastic sheeting attached securely in place. All openings between containment areas and adjacent areas, including but not limited to windows, doorways, elevator openings, corridor entrances, ventilation openings, drains, ducts, grills, grates, diffusers, and skylights, shall be sealed. All penetrations that could permit air infiltration or air leaks through the barrier shall be sealed, with exceptions of the make-up air provisions and the means of entry and exit.

(c) Movable objects. All movable objects shall be removed from the containment area. Cleaning of contaminated items shall be performed if the items are to be salvaged or reused. Otherwise, they shall be properly disposed of as asbestos waste. All non-movable objects that remain in the containment area shall be covered with a minimum of four-mil plastic sheeting, secured in place.

(d) Floor and wall preparation. Floor sheeting shall completely cover all floor surfaces and consist of a minimum of two layers of sheeting with at least a dart impact of 270 grams and tear resistance of machine direction (M.D.) 512 grams and transverse direction (T.D.) of 2067 grams or at least six-mil true thickness. Floor sheeting shall extend up sidewalls at least 12 inches and be sized to minimize the number of seams. No seams shall be located at wall-to-floor joints. Sealing of all floor penetrations against water leakage is mandatory. Wall sheeting shall completely cover all wall surfaces and consist of a minimum of two layers of four-mil sheeting. Wall sheeting shall be installed so as to minimize joints and shall extend beyond wall/floor joints at least 12 inches. No seams shall be located at wall-to-wall joints. Where a fire hazard exists, all plastic sheeting will be certified by the Underwriters Laboratory (UL) as being fire retardant. Where feasible, when containment walls which exceed 260 linear feet must be constructed, a viewing window will be included in the wall for each 260 linear feet or fraction of that distance which will permit the viewing of at least 51% of the abatement work area. The window shall be constructed of plexiglass which measures approximately 18 inches by 18 inches. The bottom of the window will be at a reasonable viewing height from the outside floor.

(e) Decontamination system. A worker decontamination system in the regulated area shall be used, consisting of a clean room, shower room, and equipment room, each separated from the other and from the containment area by airlocks accessible through doorways. Except for the doorways and the make-up air provisions for the containment, the worker decontamination system shall be sealed against leakage of air. All personnel must exit the containment area through the shower before entering the clean room. No asbestos-contaminated individuals or items shall enter the clean room. The abatement contractor shall ensure that workers and supervisors:

(1) remove all gross contamination and debris from their protective clothing before leaving the containment area;

(2) remove their protective clothing in the equipment room and deposit the clothing in impermeable bags or containers labeled in accordance with subsection (j)(1) of this section;

(3) do not remove their respirators in the equipment room;

(4) shower prior to entering the clean room; and

(5) enter the clean room before changing into street clothes.

(f) Heating, ventilation, and air conditioning system equipment (HVAC). All HVAC equipment in or passing through the work area shall be shut down, and preventative measures taken to prevent accidental start-ups. All intake and exhaust openings and any seams in system components shall be sealed with at least six-mil sheeting and/or tape. All old filters shall be disposed of as asbestos waste.

(g) Warning signs. Danger signs in accordance with 29 CFR §1926.1101, shall be displayed, in both the Spanish and English languages, at all entrances to regulated areas, and on the outside of critical barriers.

(h) High-efficiency particulate air (HEPA) cleaning. Except with prior written approval from the department, cleaning procedures shall use wet methods and HEPA vacuuming. A working HEPA vacuum shall remain on-site every day of the asbestos abatement activity, from the start date and through the completion date of the project, and the unit shall have proper HEPA filter(s) in place.

(i) Containment-area ventilation. Units with HEPA filtration, and in sufficient number to provide a negative pressure of at least 0.02 inches of water column differential between the containment and outside, as measured by manometric measurements, and a minimum of four containment air changes per hour, shall be operated continuously for the duration of the project. The duration of the asbestos abatement project for the purpose of this requirement shall be considered from the time a regulated area is established through the time acceptable final clearance air-monitoring results are obtained in accordance with §295.58(i)(3) of this title relating to Operations: General Requirements for Public Buildings). These units shall exhaust filtered air to the outside of the building wherever technically feasible.

(j) Requirements for removal. The requirements for removing ACBM are that:

(1) all ACBM shall be adequately wetted prior to removal or other handling; the bags (or other suitable containers) of ACBM shall be marked per the applicable Occupational Safety and Health Administration (OSHA) and the National Emission Standards for Hazardous Air Pollutants (NESHAP) regulations and double bagged by placing asbestos-containing waste material into bags with true 6 mil thickness or may be placed in a bag or fiberboard drum that meets the following criteria: tear resistance of M.D. 300 grams, T.D. 2,068 grams, and dart impact of 216 grams. Documentation from the manufacturer shall be on site;

(2) in order to double bag the asbestos-contaminated waste material, the inner bag shall be no more than half full, excess air must be evacuated out while in containment. The top of the inner bag must be twisted closed, folded over and sealed with duct tape. The inner bag must be rinsed off or HEPA vacuumed to remove asbestos contamination and placed inside another bag (or in a fiberboard drum). If an outer bag is used, excess air shall be evacuated while in containment and the outer bag twisted closed, the top folded over and sealed with duct tape;

(3) the exterior bag or fiberboard drum shall have warning and generators labels applied as specified in 40 CFR §61.150(a)(1)(iv)-(v). Fiberboard drums shall require the application of a self-adhesive placard identifying the contents as asbestos-containing material. If a fiberboard drum is used, the top shall be sealed. It is a violation of these rules to have a container leak or break due to overfilling. Labeling of asbestos-containing waste material containers must be done prior to removal from the regulated area;

(4) in the event of a bag or fiberboard drum leak, the drum or bag shall be placed into a third bag or wrapped in a minimum of one layer of 6-mil polyethylene plastic and be sealed and labeled as stated in subsections (j)(2) and (j)(3) of this section;

(5) any additional bags or wrapping must be properly identified as being asbestos-contaminated and shall have proper generator labels attached;

(6) labeling of asbestos-containing waste material containers must be done prior to removal from the regulated area;

(7) asbestos-covered components that are going to be removed from the building may either be stripped in place and cleaned (and pass a visual inspection by the consultant), or the ACBM may be adequately wetted and the entire component wrapped in two layers of six-mil plastic or a single layer of plastic with a tear resistance of no less than M.D. 512 grams, T.D. of 2,068 grams, and a dart impact of no less than 297 grams as measured using American Society for Testing and Materials (ASTM) methods D1709, D1922, and D882, labeled and sealed, providing that:

(A) components such as sections of metal lath that cannot be safely lowered to the floor shall be stripped in place;

(B) any component that cannot be lowered or handled without presenting an excessive fiber release or safety hazard shall be stripped in place;

(8) ACBM shall be removed in small sections and containerized while wet. At no time shall material be allowed to accumulate on the floor or become dry. Structural components and piping shall be adequately wetted prior to wrapping in plastic sheeting for disposal;

(9) proper temporary storage of asbestos-containing waste material shall be provided (e.g., a roll-off box, dumpster or storage room lined with plastic sheeting). Final disposal of asbestos-containing waste material shall be within 30 days of project completion or when receiving container is full, whichever is sooner.

(k) Requirements for the encapsulation of ACBM.

(1) Prior to encapsulation, loose and hanging ACBM shall be removed.

(2) Filler material applied to gaps in existing material must contain no asbestos, shall adhere well to the substrate, and shall provide an adequate base for the encapsulating agent.

(3) Encapsulant shall be applied using only airless spray equipment with the nozzle pressure and tip size set according to the manufacturer's recommendations.

(4) Encapsulated materials shall be specifically designated by signs, labels, color coding, or some other mechanism to warn individuals who may in the future be required to disturb the material.

(l) Requirements for the enclosure of ACBM.

(1) Acceptable enclosure shall be airtight and of permanent construction, so that the area behind them is inaccessible.

(2) All areas of ACBM shall be wetted if they are to be disturbed during the installation of hangers, brackets, or other portions of the enclosure.

(3) Prior to enclosure, loose and hanging ACBM shall be removed.

(4) Filler material applied to gaps in existing materials shall contain no asbestos, and shall adhere well to the substrate.

(5) Enclosures for ACBM shall be specifically designated by signs, labels, color coding, or some other mechanism to warn individuals who may in the future be required to disturb the material.

(m) Safety requirements. The following safety requirements shall be in effect for an abatement project:

(1) Fire safety. A minimum of one fire extinguisher with a minimum National Fire Protection Association rating of 10BC (dry chemical) shall be placed within each abatement project containment for every 3,000 square feet, or fraction thereof, of containment area. Each fire extinguisher shall be maintained in a fully charged and operable condition.

(2) Electrical safety. All active electrical service lines within the regulated and containment areas shall be connected through ground-fault circuit interrupter (GFCI) units.

(3) Air monitoring. Air monitoring shall include personal samples according to 40 CFR Part 763, Subpart G or 29 CFR §1926.1101, base line sampling, area sampling, and clearance sampling according to §295.58(i) of this title.

§295.61.Operations: Notifications.

(a) General provision. The Texas Department of Health (department) shall be notified on a form specified by the department of any asbestos abatement activity, renovation or operations and maintenance (O&M) activity affecting asbestos-containing building materials (ACBM), or any demolition in facilities or public buildings. Notification shall be made to the department no less than ten working days (not calendar days) prior to commencement of the activity and shall be submitted on the form specified by the department. It is a requirement that the department notification form be filled out completely and properly. Blanks which do not apply shall be marked N/A. The designation of N/A will not be accepted for references requiring identification of the work site, building description, building owner, abatement and transportation companies, individuals required to be identified on the notification form, or start and completion dates in compliance with 40 CFR §61.145, and this section. National Emission Standards for Hazardous Air Pollutants (NESHAP) requirements apply equally to both the NESHAP and Texas Asbestos Health Protection Act (TAHPA) notification requirements. An original signature is required on each notification form. A copied signature is not acceptable. An invoice for the required fee for notifications will be sent from the department to the building owner.

(1) Public buildings. The department shall be notified of any demolition of a public building whether or not asbestos has been identified. The department shall be notified of other abatement projects, disturbances, or renovations involving the abatement of any amount of asbestos within a public building.

(2) Facilities. For all facilities which are not otherwise subject to this title as public buildings, the department shall be notified of any demolition of a facility, whether or not asbestos has been identified. The department shall be notified of any abatement project, disturbance, or renovation involving the abatement of asbestos within a facility, as required by and in accordance with NESHAP.

(b) Responsibility for Proper Notification. It is the responsibility of the facility owner and/or operator to notify the department under this section. In a public building, this task may be delegated to the owner's agent such as a licensed asbestos abatement contractor or consultant and must be delegated in writing. In a demolition where a licensed abatement contractor or consultant is not required, the task may be delegated in writing to the demolition contractor or other agent. The notification must be filed on the form specified by the department. The notification shall have all information completed with no blocks left blank. The facility owner, and the agent to whom the task of notification has been delegated, are jointly and severally responsible for the accuracy and timeliness of the notification.

(c) Timeliness of notification. Written notifications of asbestos abatement activity or demolition must be hand delivered, express mailed, or postmarked at least 10 working days (not calendar days) before asbestos abatement or any other activity begins that will disturb asbestos. Notifications must be delivered by United States Postal Service, commercial delivery service, or by hand delivery. Telephone facsimile (FAX) is not permitted.

(d) Start-date change to later date. When asbestos abatement activity, demolition, renovation or O&M will begin later than the date contained in the notice, the department shall:

(1) be notified (Asbestos Programs Branch or Regional Office) of the changed start date by telephone as soon as possible but prior to the original start date. An amended notification is required in writing immediately following the foregoing notification; and

(2) be provided with a written notice of the new start date as soon as possible before, but no later than the original start date. Delivery of the updated notice by the United States Postal Service, commercial delivery service, or hand delivery is acceptable.

(e) Start-date change to earlier date. When asbestos abatement, demolition, renovation, or O&M will begin on a date earlier than the date contained in the notice, the department shall be provided with a written notice of the new start date at least ten working days before the start of work.

(f) Start-date/stop-date (completion date) requirement. In no event shall asbestos abatement, demolition, operations and maintenance (O&M), or renovation, as covered by this section, begin or be completed on a date other than the date contained in the written notice except for operation covered under subsection (g) of this section. Amendments to start date changes are to be submitted as required in subsections (d) and (e) of this section. An amendment is required for any stop dates which change by more than one work day for each week (seven calendar day period) for which the project has been scheduled and notification submitted. The building owner, or his/her delegated agent, shall provide schedule changes to the department no less than 24 hours prior to the change or completion of the project. Changes less than 10 days in advance shall be confirmed with the regional office telephonically and followed up in writing to the central office located in Austin, Texas.

(g) Consolidated notifications of small operations. Notifications involving a series of small, separate asbestos O&M or abatement operations (each less than 160 square feet or 260 linear feet or 35 cubic feet in size) may be combined by listing the information on a single notification form. Predict the combined additive amount of asbestos to be removed or stripped during a calendar year of January 1 through December 31. If the total amount is less than one asbestos reporting unit per subsection (j) of this section, and the facility is not a public building, a notification is not required. If the facility is a public building, a notification is required for any amount. The department shall be notified at least 10 working days (not calendar days) before the end of the calendar year preceding the year for which notice is being given.

(1) The building owner shall keep records of the individual O&M projects in an O&M manual. An amendment of the annual notification shall be submitted if the amount of asbestos that is abated surpasses that amount of asbestos that was predicted in the original notification by 20%. Fees will be based upon the annual notification and any amendments. The fee that is calculated for the amended notification will only be for the amount of asbestos (number of ARUs) that increased from the original notification. The $50 administrative fee will not be reassessed.

(2) The department during a routine inspection shall review the O&M manual for the amount of asbestos that has been abated and compare the amount to the amount estimated on the annual notification. If the amount of asbestos that has been abated exceeds the amount estimated in the annual notification by more than 20%, the notification will be improper.

(h) Provision for emergency. In the event of emergency renovations made necessary by an unexpected or unplanned asbestos incident, notification will be made as soon as practicable, but not later than the following work day after the occurrence of the incident. Initial notification can be made by telephone, followed by formal notification on the department's notification form. Emergencies shall be documented to the extent that the need for the emergency is evident. An emergency renovation operation means a renovation operation that was not planned, but results from a sudden, unexpected event. This event, if not immediately attended to, presents a public health or safety hazard, and is necessary to protect equipment from damage, or is necessary to avoid imposing an unreasonable financial burden. This term includes operations necessitated by non-routine failures of equipment. This term does not include immediate renovations resulting solely from a lack of adequate planning for foreseeable asbestos abatement activity.

(i) Demolition notifications. The department shall be notified of all demolitions regardless of size. If the facility is being demolished under an order of a state or local government agency, issued because the facility is structurally unsound and in danger of imminent collapse, then the department notification must be delivered as early as possible before, but not later than, the following working day of the commencement of demolition. The judgment that a structure is in danger of imminent collapse or that it is unsafe for anyone to enter shall be made by a professional engineer, registered architect, or government official. Emergencies shall be documented to the extent that the need for the emergency is evident. Public health and safety or unavoidable economic concerns are the qualifications for an emergency rather than expediency.

(j) Asbestos notification fees.

(1) Applicability. The building owner shall remit to the department a fee that is based upon the amount of asbestos removed.

(2) Payment. An invoice for the required fee will be sent to the building owner after the notification has been received by the department. Fee amounts, address, and fund numbers are included on the form. Payment must be remitted in the manner instructed on the invoice. The facility owner is responsible for the payment of the required notification fee. The task may be delegated to an agent but the facility owner is solely responsible for timely and sufficient payment.

(3) Basis for fees. The fees shall be based on the total amount of the regulated asbestos-containing material (RACM) reported to be removed as defined in 40 CFR §61.141 or asbestos-containing building material (ACBM) to be removed as defined in §295.31(c) of this title (relating to General Provisions) and notified in accordance with §295.34(f) of this title (relating to Asbestos Management in Facilities and Public Buildings), and subsection (a) of this section. The fee shall be calculated at the rate of $25 per asbestos reporting unit (ARU). The number of ARUs associated with the removal activity is determined by dividing the number of linear feet by 260, the number of square feet reported by 160, and the number of cubic feet by 35 and adding these individual results. The sum of this addition, minus any fraction, shall then be multiplied by the $25 rate to calculate the notification fee. The minimum fee shall be $50 administration fee per original notification. The maximum fee shall be $3,000 per notification, except for schools, which shall be $300 per notification. The fee shall be assessed only for the amount of asbestos to be removed. If no asbestos is removed or if the amount of asbestos removed is less than two ARUs, only the minimum administrative fee shall be assessed. Annual notifications of maintenance activities subject to 40 CFR, Part 61, Subpart M and subsection (g) of this section, are included in the fee requirement. If less than the reported amount will be removed, a notification amendment should be provided to the department no later than five working days following the completion of the project. A refund request must be sent with the amended notification. A new invoice will be sent to the building owner which will reflect a new fee based upon the actual amount of asbestos that was removed. If the fee has been paid, refunds will be made, when appropriate, minus a $50 administrative fee. Revision of the form will require an additional fee only if the amount of reportable asbestos to be removed is increased.

(4) Nonpayment of fees. Failure to pay the required fee after an invoice has been sent shall be considered a violation and may subject the building owner to administrative penalties as listed in §295.70 of this title (relating to Compliance: Administrative Penalty). The building owner and his agent may also be subject to criminal penalties if applicable. Governmental organizations may submit a copy of the interagency transfer document or a statement that a check has been requested and is in processing. Payment must then be received no later than 60 working days following date of the invoice.

§295.62.Operations: Record Keeping.

(a) Record retention. Records and documents required by this section shall be retained for a period of 30 years from the date of project completion unless otherwise stated in this section. Such records and documents shall be made available to the department upon request. Persons ceasing to do business, shall notify the Texas Department of Health (department) in writing within 30 days of such event. The department, on receipt of such notification may instruct that the records be surrendered and may specify a repository for such records. The persons shall comply with the department's instructions within 60 days.

(b) Training providers. Licensed training providers shall comply with the following minimum record-keeping requirements.

(1) Training course materials. A training provider must retain copies of all instructional materials used in the delivery of the classroom training such as student manuals, instructor notebooks and handouts.

(2) Instructor qualifications. A training provider must retain copies of all instructors' resumes, and the documents approving each instructor issued by the department or EPA. Instructors must be approved by the department before teaching courses for accreditation purposes. A training provider must notify the department in advance whenever it changes course instructors. Records must accurately identify the instructors that taught each particular course for each date that a course is offered together with the course student roster.

(3) Examinations. A training provider must document that each person who receives an accreditation certificate for an initial training course has achieved a passing score on the written examination in accordance with §295.64(j) of this title (relating to Training: Required Asbestos Training Courses). These records must include a copy of the exam and clearly indicate the date on which the exam was administered, the training course and discipline for which the exam was given, the name of the person who proctored the exam, and the name, examination answer sheet, and test score of each person taking the exam. All information from the training course and examination, including the topic and dates of the training course, must correspond to the information listed on each person's accreditation certificate. All records required to be maintained under this section shall be available for inspection by the department immediately upon conclusion of the course and administration of the examination.

(4) Accreditation certificates. The training providers shall maintain records that document the names of all persons who have been awarded certificates, their certificate numbers, the disciplines for which accreditation was conferred, training and expiration dates, and the training location. The training provider shall maintain the records in a manner that allows verification of the required information by telephone.

(5) Verification of certificate information. Training providers of refresher training courses for accreditation must reasonably confirm that their students possess valid accreditation before granting course admission. Training providers offering the initial management planner training course must reasonably confirm that students have met the prerequisite of possessing valid inspector accreditation at the time of course admission. A valid accreditation certificate to receive refresher training would be one in the same course and not expired over 12 months.

(6) Records retention and access.

(A) The training provider shall maintain all required records for a minimum of three years.

(B) The training provider must allow the department reasonable access to all of the records required by the MAP, and to any other records which may be required by the department for the approval of asbestos training providers or the accreditation of asbestos training courses.

(C) If a training provider ceases to conduct training, the training provider shall notify the department and provide reasonable opportunity for the department to take possession of that provider's asbestos training records.

(1) Central location. The following records and documents shall be maintained by asbestos contractors at a central location at the principal place of business for a period of 30 years and shall be made available to the department upon request:

(A) records and documents required by 29 CFR §1910, and 29 CFR §1926.1101, as amended;

(B) name, address, and asbestos certificate number of each employee, past and present, including dates of employment, and description of each employee's involvement in each asbestos project while employed by the contractor, including name, address, location, and duration of project;

(C) copies of all regulatory agency correspondence including letters, notices, citations received and notifications made by the building owner or operator;

(D) records and documents required to be maintained under any other applicable federal, state, or local law, regulation, or ordinance;

(E) receipts and documentation of disposal of asbestos waste showing dates, locations, and amounts of asbestos waste disposed including the identification of the source of the asbestos waste and the transporter (company name or driver name, if an employee of the contractor);

(F) copies of laboratory reports and sample analysis documenting workplace and personal exposure levels, including copies of consultant's reports provided to the contractor regarding employee or clearance level monitoring; and

(G) copies of all specifications of contracts awarded for asbestos abatement projects.

(2) On site. Records and documents shall be maintained on-site at the asbestos project location for the duration of the project. Records and documents with personal references shall be made available to all persons employed at the site upon request. All on-site records and documents shall be made available to the department upon request. The records and documents covered by this paragraph include:

(A) all current licenses, registrations and accreditation certificates;

(B) a current copy of the work practice requirements;

(C) a copy of the contract or technical specifications governing the project or if no contract, location and description of operations and description of abatement procedures;

(D) a listing of all employees, by name, social security number and certificate number working on the project;

(E) a listing of each of the contractors, subcontractors and consultants on the project;

(F) a daily sign-in/out log which identified persons by name and the length of time each spent at the site;

(G) records of all on-site air monitoring;

(H) a written respirator program which conforms to requirements of 29 CFR §1910.134(b), as amended;

(I) name and address of the contractor or building owner-operator;

(J) name and address of project supervisor(s);

(K) description of personal safety practices;

(L) name and address of waste disposal site;

(M) dates of participation in the operation;

(N) a roster of registered asbestos workers employed; and

(O) current copies of the "Physician's Written Statement" and respirator fit-tests of individuals who enter a regulated area.

(d) Analytical services. Licensed providers of asbestos analytical services shall maintain copies of all records and documents for 30 years, which are required by these sections and copies of all analyses performed, including the sample identification number and analytical results, and make such documents available to the department for inspection upon request. Samples which have been taken as part of an inspection are required to be retained by the analyzing laboratory for ten days after the completion of the project or for 30 days, whichever is longer.

(e) Consultants. Licensed consultants shall maintain client files pertaining to surveys, sampling, assessment, and clearance level monitoring and copies of daily construction logs pertaining to contractor work practices and make such documents available to the department for inspection upon request. Logs for completed projects shall be maintained at the consultant's principal place of business. Logs for current projects shall be kept at the asbestos project work site until final cleanup has been certified.

(f) Operations and maintenance manual. The public building owner shall record each individual operations and maintenance activity in the manual, including the date of activity, the persons performing the activity, complete description of the activity, including methods used to prevent the emission of asbestos fibers, and the amount of asbestos removed. An updated total of the amount of asbestos abated shall be kept as a comparison to the amount estimated in the annual consolidated notification. The manual shall be made available to the department upon request.

§295.64.Training: Required Asbestos Training Courses.

(a) General provisions. Persons working with asbestos must be appropriately accredited to perform as a worker, contractor/supervisor, inspector, management planner, or project designer. In a commercial building, only EPA accreditation is required as specified in this section. In a public building, licensing is also required. Applicants for licensing or renewal must submit evidence of fulfillment of specific training requirements acceptable to the Texas Department of Health (department) under these sections. Course content, hours of instruction, refresher training, etc., are subject to change or modification. At the conclusion of each training course, the instructor shall provide the student a copy of the registration form for the state licensing examination and a copy of the examination schedule. The training provider shall also assist the applicant if needed to complete the application to include listing any special requirements of the student, such as an accommodation for a disability covered by the Americans With Disabilities Act.

(1) The provisions of the Environmental Protection Agency (EPA) Model Accreditation Plan (MAP) reaffirm the principle that each of the accredited training disciplines is distinct from the others, because each reflects a different functional job role. Training courses for all disciplines shall be in accordance with the MAP.

(2) Each initial and refresher training course offered for accreditation must be specific to a single discipline, and not combined with training for any other discipline. This prohibition against combined training also applies to hands-on training sessions.

(3) Training courses shall be conducted by training providers licensed by the department. Persons trained within the confines of this State by unlicensed providers shall not be licensed by the department.

(4) Valid training courses performed in other states, in the past 12 months, by EPA approved training providers shall be accepted by the department provided that applicants have completed an approved course in Texas asbestos law and rules from a training provider licensed by the department.

(5) The one-year period of validity following the effective date of a required asbestos course may be extended by completing the appropriate annual refresher training. Failure to complete annual refresher training within two years of the most recent training shall require that the original course be repeated.

(6) A day of training shall consist of eight hours of classroom instruction, hands-on practical training sessions, and field trips in any suitable combination, including lunch and break periods. A total of 80 minutes in lunch and breaks are authorized for each training day as determined by the instructor. A trainee is not eligible to complete a given course if more than 10% of the session has been missed. The 10% includes being absent from the course at times other than allotted break periods. No more than eight hours of instruction as described in this paragraph are authorized within a calendar day.

(7) Courses requiring hands-on practical training must be presented in an environment that permits the trainees individually to have actual experience performing tasks associated with the appropriate asbestos activity studied. Hands-on training sessions shall maintain a student to instructor ratio of not more than 15 to one. Demonstrations and audio-visuals shall not substitute for required hands-on training.

(b) Asbestos project designer training. The project designer training course shall be at least three days in length. Persons seeking to be licensed as an asbestos consultant or accredited as a project designer under these sections shall complete the approved project design training course as described in this subsection. For work in public buildings, see also the other training required for asbestos consultants in §295.47(f)(3) of this title (relating to Licensure: Individual Consultant). Successful completion of the course shall be demonstrated by achieving a score of at least 70% correct on the written course examination. The course shall adequately address:

(1) background information on asbestos;

(2) potential health effects related to asbestos exposure;

(3) overview of abatement construction projects to include clearance of the project area;

(4) safety system design specifications, including written sampling rationale for air clearance;

(5) field trip;

(6) employee personal protective equipment;

(7) additional safety hazards;

(8) fiber aerodynamics and control;

(9) designing abatement solutions and written project design;

(10) budgeting/cost estimation;

(11) writing abatement specifications;

(12) preparing abatement drawings;

(13) contract preparation and administration;

(14) legal/liabilities/defenses;

(15) replacement;

(16) role of other consultants;

(17) occupied buildings;

(18) how to accomplish a complete visual inspection;

(19) relevant federal, Texas, and local regulatory requirements; and

(20) course review.

(c) Contractor/supervisor training. The contractor/supervisor course shall consist of at least five days of training. Persons seeking to be licensed as an asbestos abatement contractor, asbestos abatement supervisor, project manager, or operations and maintenance (O&M) (restricted) contractor/supervisor or accredited as an asbestos abatement contractor or supervisor, shall successfully complete an approved contractor/supervisor training course as described in this subsection. The course may be substituted for the asbestos abatement worker course; this substitution also applies to annual refresher training. This training shall include lectures, demonstrations, audio-visuals and hands-on training, including individual respirator fit testing, course review, and a written examination of 100 multiple-choice questions. Each trainee must score at least 70% correct on this written exam to successfully complete the course. The course shall adequately address:

(1) physical characteristics of asbestos and asbestos-containing building material (ACBM);

(2) potential health effects related to asbestos exposure;

(3) employee personal protective equipment;

(4) state-of-the-art work practices;

(5) personal hygiene;

(6) additional safety hazards;

(7) medical monitoring;

(8) air monitoring;

(9) relevant federal, state, and local regulatory requirements;

(10) establishment of respiratory protection programs and medical surveillance programs;

(11) 14 hours of hands-on training, including work area preparation, decontamination chamber construction, cleaning and disposal, and respirator fit testing and maintenance;

(12) insurance and liability issues;

(13) recordkeeping for asbestos abatement projects;

(14) supervisory techniques for asbestos abatement activities;

(15) contract specifications; and

(16) course review and manual.

(d) Asbestos abatement worker training. The worker training course shall consist of at least four days of training. Persons seeking registration or accreditation as asbestos abatement workers shall successfully complete the approved training course, as described in this subsection. Successful completion of the contractor/supervisor training course shall also be acceptable as qualification for asbestos worker applicants. Worker training courses are required to have a classroom student-instructor ratio of not more than 25 to 1 (25:1). The worker training course shall include lectures, demonstrations, hands-on training including individual respirator fit testing, course review, and a written examination consisting of 50 multiple-choice questions. Successful completion of the course shall be demonstrated by achieving a score of at least 70% correct on the written examination. The course shall adequately address:

(1) physical characteristics of asbestos and ACBM;

(2) potential health effects related to asbestos exposure;

(3) employee personal protective equipment;

(4) state-of-the art work practices;

(5) personal hygiene;

(6) additional safety hazards;

(7) medical monitoring;

(8) air monitoring;

(9) relevant federal, state, and local regulatory requirements;

(10) establishment of respiratory protective programs and medical surveillance programs;

(11) 14 hours of hands-on training, including work area preparation, decontamination chamber construction, cleaning and disposal, and respirator fit testing and maintenance; and

(12) course review and manual.

(e) Asbestos inspectors. The inspector course shall consist of at least three days of training. Persons seeking to be licensed or accredited as asbestos inspectors shall successfully complete the approved training course as described in this subsection. The inspector training course shall include lectures, demonstrations, hands-on individual respirator fit testing, course review and a written examination consisting of 50 multiple choice questions. Successful completion of the course shall be demonstrated by achieving a score of at least 70% correct on the written examination. The course shall adequately address:

(1) background information of asbestos;

(2) potential health effects related to asbestos exposure;

(3) functions/qualifications and role of inspectors;

(4) legal liabilities and defenses;

(5) understanding of building systems;

(6) public/employee/building occupant relations;

(7) pre-inspection planning, and review of previous survey records;

(8) inspecting for friable and non-friable ACBM;

(9) assessing of the condition of friable ACBM;

(10) bulk sampling/documentation of asbestos;

(11) air monitoring;

(12) employee personal protective equipment;

(13) record keeping and writing of the survey report;

(14) regulatory review;

(15) field trip, to include a building walk-through inspection at a suitable location outside of the classroom; and

(16) course review and manual.

(f) Management planners. The management planner course shall consist of at least two days of training, and has as a prerequisite, the three-day asbestos inspector course. Persons seeking to be licensed as management planners shall successfully complete the training program for inspectors, as described in subsection (d) of this section, plus the approved asbestos management planner training course, as described in this subsection. The management planner course shall include lectures, demonstration, course review and a written examination consisting of 50 multiple choice questions. Successful completion of the course shall be demonstrated by achieving a score of at least 70% correct on the written examination. The course shall adequately address:

(1) course overview;

(2) evaluation and interpretation of survey results;

(3) hazard assessment;

(4) legal implications;

(5) evaluation and selection of control options;

(6) role of other professionals;

(7) developing an operations and maintenance (O&M) plan; and

(8) regulatory review; and

(9) recordkeeping for the management planner;

(10) assembling and submitting of a management plan;

(11) financing abatement actions; and

(12) course review and manual.

(g) Air monitoring technician. Persons seeking to be licensed as air monitoring technicians shall successfully complete an approved three-day training course as described in this subsection. The air-monitoring technician course shall include lectures, demonstrations, hands-on individual respirator fit testing, course review and a written examination consisting of 50 multiple choice questions. Successful completion of the course shall be demonstrated by achieving a score of at least 70% correct on the examination. The course shall adequately address the:

(1) health effects of asbestos;

(2) asbestos regulations (state and federal);

(3) asbestos sampling and evaluation methods;

(4) calculating sampling times;

(5) time weighted average calculation;

(6) calibration of air sample pumps;

(7) sample logs and records;

(8) compliance testing;

(9) clearance testing; and

(10) clearance procedures.

(h) Texas law and rules. Persons seeking an asbestos license or worker registration with the department who submit out-of-state training as a means of qualification must successfully complete an approved three-hour course on Texas asbestos health protection law which shall be conducted by a training sponsor licensed by the department. This requirement shall be completed prior to commencing any licensed asbestos activity within the state.

(i) Refresher training. All disciplines shall receive refresher training annually. Satisfactory completion of such training shall be a condition of renewal, and evidence of satisfactory completion shall be included in the annual renewal application. No refresher training can be accredited if the training course for licensure or registration was never completed. Refresher training courses for all disciplines shall be in accordance with the MAP and shall adequately address and include:

(1) federal and Texas regulations;

(2) state-of-the-art developments for the topic specialty of the course; and

(3) review of the training manual and key aspects of the initial training course.

(j) Examinations. Each training provider shall administer a closed book written examination to persons seeking accreditation who have completed an initial training course. Demonstration testing may also be included as part of the written examination. A person seeking initial accreditation in a specific discipline must pass the written examination for that discipline in order to receive accreditation. For example, a person seeking accreditation as an abatement project designer must pass the written examination for an abatement project designer. Training providers shall develop written examinations that conform to the following requirements for accreditation under the Toxic Substances Control Act (TSCA) Title II.

§295.65.Training: Approval of Training Courses.

(a) General provision. Asbestos training courses shall be individually approved only for those training providers currently licensed by the Texas Department of Health (department). Applications for each course shall be made separately. The department shall consider prior teaching of the course applied for as a part of the approval process.

(b) Contingent approval. Contingent approval of an asbestos training course shall be granted to an applicant after all required information and documentation submitted has been found to meet the requirements set forth in these sections for approval of the course by the department. Once the department grants contingent approval, a training provider license will be issued and its status will be regarded as contingent. The license will be valid for a one-year period after it has been issued.

(c) Full approval. Full approval of an asbestos training course and the training provider license shall be granted for a period of one year after the department has granted contingent approval, has had the opportunity to conduct an on-site observation and evaluation of the training course, its instructors and its facilities, and has determined that the applicant's asbestos training course meets the requirements set forth in these sections. Training course providers shall permit representatives of the department to attend, evaluate, and monitor any training course without charge. The department compliance inspection staff are not required to give advance notice of their inspections.

(d) Applications. An applicant for approval of an asbestos training course must submit an application in writing to the department. Within 30 working days after receiving an application, the department shall acknowledge receipt of the application and notify the applicant of any deficiency in the application. The department will approve or deny the application only upon receipt of the completed application which shall contain the following information:

(1) Initial Training Course Approval. The following minimum information is required for approval of initial training courses:

(A) the name and address of the licensed training provider who will present the course, and the name and phone number of the responsible individual;

(B) the type of course for which approval is being requested, including the length of training in days;

(C) a detailed outline of the course curriculum including the specific topics taught, the amount of time allotted to each topic, the amount and type of hands-on training, the name and qualifications of the individual developing the instruction program for each topic, and copies of all written materials to be distributed to the student;

(D) a description of the type of equipment owned which must be used in all full-length courses for demonstrations and/or "hands-on" exercises, including but not limited to, types of respirators, negative air units, water spray devices, protective clothing, construction materials, high efficiency particulate air (HEPA) vacuum, air purifying panel, glove bags, shower unit, water filter assembly;

(E) documentation, including photos and details of assurance that the number of instructors, the amount of equipment, and the facilities are adequate to provide the students with proper training;

(F) administration of a written multiple choice examination at the conclusion of the course. If copies of the exam are required by the department, measures to protect the confidentiality of the exam as proprietary information will be maintained by the department to the extent authorized by law;

(G) acknowledgement that the minimum grade which must be obtained on the exam for a trainee to successfully complete the course is 70% correct;

(H) a list of any other states that currently approve the training course;

(I) a copy of all course materials (student manuals, instructor notebooks, handouts, and other course related materials);

(J) a detailed statement about the development of the examination used in the course;

(K) names and qualifications of all course instructors. Instructors must have academic and/or field experience in asbestos abatement; and

(L) a description and example of the numbered certificates issued to students who attend the course and pass the examination.

(2) Refresher Training Course Approval. The following minimum information is required for approval of refresher training courses:

(A) the length of training in half-days or days.

(B) the topics covered in the course.

(C) a copy of all course materials (student manuals, instructor notebooks, handouts, and other course related materials).

(D) the names and qualifications of all course instructors. Instructors must have academic and/or field experience in asbestos abatement; and

(E) a description and an example of the numbered certificates issued to students who complete the refresher course and pass the examination, if required.

(3) Withdrawal of Training Course Approval. The following criteria are grounds for suspending or withdrawing approval from accredited training programs under §295.69 of this title (relating to Compliance: Reprimand, Suspension, Revocation). At a minimum, the criteria shall include:

(A) misrepresentation of the extent of a training course's approval by a State or EPA;

(B) failure to submit required information or notifications in a timely manner;

(D) falsification of accreditation records, instructor qualifications, or other accreditation information;

(E) failure to adhere to the training standards and requirements of the EPA MAP or State Accreditation Program;

(F) an approved training course instructor, or other person with supervisory authority over the delivery of training that has been found in violation of other asbestos regulations in a manner that indicates a lack of ability, capacity or fitness to perform training duties and responsibilities. An administrative order under §295.69 of this title or §295.70 of this title (relating to Compliance: Administrative Penalty) constitutes evidence of a failure to comply with relevant statutes or regulations; or

(G) submittal of false information as a part of the self-certification required under Unit V.B. of the revised MAP.

(e) Re-training (refresher) courses. For all disciplines except inspectors, management planners, and air monitoring technicians, a state accreditation program shall include a one-day annual refresher training course for reaccreditation. Refresher courses for inspectors shall be a half-day in length. Management planners shall attend the inspector and management planner refresher courses. Consultants shall attend an approved two-day annual refresher training course, or four separate refreshers consisting of project designer, inspector, management planner, and air monitoring technician. The inspector, management planner, and air monitoring refresher courses shall each be four hours in length. For each discipline, the refresher course shall review and include: federal, state and local regulations; state-of-the-art developments; and a review of the key aspects of the initial training course.

(f) Issuance of certificates. All training certificates shall bear the name, address, and telephone number of the licensed training facility and the name of the instructor. The training provider shall:

(1) issue certificates that bear the school's name, address, telephone number, name of accredited person, discipline of the training course completed, name of instructor, expiration date of one year after the date upon which the person successfully completed the course or examination, as applicable, and a statement that the student passed the examination and the date it was taken. The certificate must include the signature of the instructor and the signature of the course director, principal officer, owner, or CEO. Refresher certificates require all of the above except the examination date;

(2) issue a wallet-size photo-identification card, including a description of the course completed, the effective date, and the social security number of the trainee;

(3) submit the names, social security numbers (or other identifiers if the student does not wish to provide his/her social security number), one-inch by one-inch photos, taken during the course, and a group photo of the class taken at the end of the course that identifies which students did and did not pass the course, to the department within 10 working days of the completion date of each course on a form provided by the department. Digital or scanned images will be accepted. The group photograph must be no smaller than a standard 3-1/2 inches x 4-1/4 inches print; and

(4) provide student with a current one-inch by one-inch photo attached to a department application for license/registration. The photograph submitted to the department for licensing purposes must have a white background.

(g) Revocation or suspension of approval. The department may revoke or suspend approval if field site inspections indicate a training course is not providing training that meets the requirements of the model accreditation plan or these sections. Training course sponsors shall permit department representatives to attend, evaluate, and monitor any training course without charge. The inspection staff may not give advance notice of their inspections.

(h) Minimum number of instructors. Each course requiring approval according to the model accreditation plan shall require at least the minimum number of instructors for that course as specified by EPA. Only one instructor is required for courses with five or fewer students. In cases where a second instructor is required, a guest speaker can substitute for one of the required instructors. The person acting as the second instructor shall teach a minimum of two hours. Two instructors are not required for worker courses or refresher courses.

§295.69.Compliance: Reprimand, Suspension, Revocation, Probation.

(a) After notice to the licensee or registrant of an opportunity for a hearing in accordance with subsection (e) of this section, the Texas Department of Health (department) may deny or shall reprimand the licensee or registrant or modify, suspend, suspend on an emergency basis, refuse to renew, or revoke a license or registration under the Texas Asbestos Health Protection Act.

(b) If the department suspends a license on an emergency basis, the suspension is effective immediately. The department shall then provide an opportunity for a hearing in accordance with subsection (e) of this section within 20 days after the date of the emergency suspension.

(c) The department may deny or shall reprimand any licensee or registrant, or shall modify, suspend, suspend on an emergency basis, refuse to renew, or revoke a license if the licensee, registrant, or applicant engages in the behavior listed below. If a license or application has been denied, revoked or suspended for the reasons listed below, the licensee/applicant named in the revocation is not eligible to reapply for licensing for the time periods listed. If the licensee or applicant:

(1) has fraudulently or deceptively obtained or attempted to obtain a license, registration, or a contract to perform an asbestos-related activity - ineligible to reapply for three years;

(2) fails at any time to meet the qualifications for a license - ineligible to reapply until qualifications are met;

(3) fails to comply with these rules - ineligible to reapply for three years;

(4) fails to comply with any applicable federal or state standard for licensed asbestos activities - ineligible to reapply for three years;

(5) fails to maintain the records required by a federal agency or by the department for the licensed asbestos activities - ineligible to reapply for one year;

(6) falsifies the records required by a federal agency or by the department for the licensed asbestos activities - ineligible to reapply for three years; or

(7) has been convicted within the past five years of a felony or misdemeanor arising from an asbestos-related activity- ineligible to reapply for three years.

(d) The contested-case hearing provisions of the Administrative Procedure Act, Texas Government Code, Chapter 2001, shall apply to any enforcement action proposed to be taken under this section. The formal hearing procedures of the department in Chapter 1 of this title (relating to the Board of Health) shall also apply.

(e) Probation. The department may place on probation a person whose license or registration is suspended. If a suspension is probated, the department may require the person:

(1) to report regularly to the department on matters that are the basis of the probation;

(2) to limit practice to the areas prescribed by the board; or

(3) to continue or review professional education until the person attains a degree of skill satisfactory to the board in those areas that are the basis of the probation.

§295.70.Compliance: Administrative Penalty.

(a) If a person violates the Texas Asbestos Health Protection Act (Act), or a rule adopted or order issued under the Act, the Texas Department of Health (department) may assess an administrative penalty.

(b) The penalty shall not exceed $10,000 a day per violation. Each day a violation continues will be considered a separate violation. The total penalty will be the sum of all individual violation penalties.

(1) history of previous violation(s);

(2) seriousness of the violation(s);

(3) hazard to the health and safety of the public; and

(4) demonstrated good faith, and any other matter which justice may require.

(d) Individual violations may be reduced or enhanced based on the considerations listed in subsection (c) of this section, or any others that justice may require.

(e) A person is subject to double the initial penalty on second finding of violation of any provision of the act or rules. Third and subsequent violations of a provision are subject to five times the initial penalty.

(f) Violations shall be placed in one of the following severity levels.

(1) Critical violation. Severity Level I covers violations that are most significant and have a direct negative impact on public health and safety. This category shall include fraud and misrepresentation. The base penalty for a Level I violation, first occurrence will not exceed $10,000 per day, per violation. Examples of Level I violations include, but are not limited to:

(A) failure to establish effective containment during abatement of friable material;

(B) permitting disposal of friable asbestos-containing building material (ACBM) at uncontrolled sites;

(D) failure to adequately prevent public entry to potentially contaminated areas;

(E) failure to maintain material in an adequately wet condition;

(F) submitting a forged or altered training certificate in order to obtain a training provider or other license;

(G) training providers training without a license or with an improper license;

(H) training providers providing training certificates to persons who have not attended the required training course as specified by the department and/or the Model Accreditation Plan; and

(I) failure to submit a notification.

(2) Serious violation. Severity Level II covers violations that are significant and which, if not corrected, could threaten public health and safety. The base penalty for Level II violations on a first occurrence will not exceed $1,000 per day, per violation. Examples of Level II violations include, but are not limited to:

(A) working with a lapsed or suspended license;

(B) submitting an improper notification;

(C) a training provider failing to conduct a training course for the specified time period as specified in §295.64 of this title (relating to Training: Required Asbestos Training Courses);

(D) training with a lapsed training provider license. If this results in a suspension, the organization and its principals will not be allowed to be licensed for a period of one year;

(E) failure of a licensed person to maintain current training or physical; and

(F) failure to pay the required notification fee.

(3) Significant violation. Severity Level III covers violations that are of more than minor significance and, if left uncorrected, could lead to more serious circumstances. The base penalty for Level III violations on first occurrence will not exceed $100 per day, per violation. Examples of Level III violations include, but are not limited to:

(A) failure to properly complete the notification form;

(B) failure to post required documents listed in §295.58(j) of this title (relating to Operations: General Requirements for Public Buildings);

(D) failure of a training provider to submit information to the department regarding training course schedules or to notify the department of cancellations within the specified time periods;

(E) failure of a training provider to submit course completion information within the specified time period as described in §295.65(f)(3) of this title (relating to Training: Approval of Training Courses);

(F) a training provider exceeding the maximum trainee-instructor ratio; and

(G) failure to pay the required notification fee within 60 days from the date of the invoice.

(g) The person charged with the violation will be given the opportunity for a hearing conducted in accordance with the applicable provisions of the Administrative Procedure Act, Texas Government Code, Chapter 2001, and the department's formal hearing procedures in Chapter 1 of this title (relating to the Board of Health).

(h) The hearing regarding a proposed administrative penalty may be consolidated with another hearing on an administrative penalty.

(i) If the person charged with the violation fails to request a hearing within 30 days following receipt of a notice of violation, the commissioner of health or his/her designee may issue a default order assessing the administrative penalty.

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 March 7, 2003.

TRD-200301629

Susan K. Steeg

General Counsel

Texas Department of Health

Effective date: March 27, 2003

Proposal publication date: December 6, 2002

For further information, please call: (512) 458-7236