TITLE 25.HEALTH SERVICES

Part 1. TEXAS DEPARTMENT OF HEALTH

Chapter 3. MEMORANDUMS OF UNDERSTANDING WITH OTHER STATE AGENCIES

25 TAC §3.21

(Editor's note: The text of the following section proposed for repeal will not be published.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

The Texas Department of Health (department) proposes the repeal of §3.21, concerning a memorandum of understanding between the department and the Department of Protective and Regulatory Services (DPRS) for elderly abuse.

Government Code, §2001.039, requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). The department has reviewed §3.21 and has determined that the reason for adopting the section no longer exists. Human Resources Code, §48.022, was renumbered to §48.303 and no longer applies to the department because it places the burden of any memorandum of understanding on DPRS instead of the department. The former DPRS rule (40 TAC §736.506) pertaining to the Memorandum of Understanding was repealed effective March 1, 2001, and was published in the Texas Register in the February 9, 2001, issue (26 TexReg 1355).

The department published a Notice of Intention to Review for §3.21 in the Texas Register on September 4, 1998 (23 TexReg 9077). No comments were received due to publication of this notice.

Susan K. Steeg, General Counsel, has determined that for each year of the first five years the repeal of this section is in effect, there will be no fiscal impact on state or local government.

Ms. Steeg has determined that for each year of the first five years the repeal of §3.21 is in effect, the public benefit anticipated as a result of the repeal will be to eliminate a rule that is unnecessary because there is no statutory requirement for the rule. There will be no cost effects on micro-businesses or small businesses. This was determined by interpretation of the rules that micro-businesses or small businesses will not be required to alter their business practices as a result of the proposed repeal of this rule. There are no economic costs to persons who may be affected by the proposed repeal of this rule. There is no anticipated impact on local employment.

Comments on the proposal may be submitted to Robin Carter, Legal Assistant, Office of General Counsel, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, (512) 458-7236 or by email at the following address: robin.carter@tdh.state.tx.us. Comments will be accepted for 30 days following publication of this proposal in the Texas Register .

The repeal is proposed under Health and Safety Code, §12.001, which provides the Texas Board of Health (board) with authority to adopt rules to implement every duty imposed by law on the board, the department and the commissioner.

The repeal of this section implements Government Code, §2001.039.

§3.21.Memorandum of Understanding with Department of Protective and Regulatory Services Concerning Elderly Abuse.

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

Filed with the Office of the Secretary of State on May 8, 2003.

TRD-200302858

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: June 22, 2003

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


Chapter 91. CANCER

Subchapter B. PROSTATE CANCER ADVISORY COMMITTEE

25 TAC §91.21

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

The Texas Department of Health (department) proposes the repeal of §91.21, concerning the Prostate Cancer Advisory Committee (committee). The committee has provided advice to the Texas Board of Health (board) and the department on strategies for educating the public on the health benefits of the early detection, prevention, and treatment of prostate cancer.

In 1993, the Texas Legislature passed Senate Bill 383 (now codified in the Government Code, Chapter 2110), which requires that each state agency adopt rules on advisory committees. The rules must state the purpose of the committee, describe the tasks of the committee, describe the manner in which the committee will report to the agency, and establish a date on which the committee will be automatically abolished unless the governing body of the agency affirmatively votes to continue the committee's existence.

In 2002, the board established a rule relating to the Prostate Cancer Advisory Committee. The rule states that the committee will automatically be abolished on September 1, 2003. The board has now reviewed and evaluated the committee and has determined that the committee should be abolished on that date. Issues relating to the type of advice previously provided by the committee may be better addressed through the establishment of ad hoc workgroups.

Jacquelyn McDonald, Director, Office of the Board of Health, has determined that for each year of the first five years the repeal is in effect, there will be no fiscal implications for state or local governments as a result of enforcing or administering this section since the section will no longer exist.

Ms. McDonald has also determined that for each year of the first five years the repeal is in effect, the public benefit anticipated as a result of repealing the section will be increased flexibility and breadth in obtaining input on prostate cancer education. There will be no effect on micro-businesses or small businesses. This was determined by interpretation of the rule that small businesses and micro-businesses will not be required to alter their business practices in order to comply with the repeal of the rule as proposed. There is no economic costs to persons as a result of this repeal. There will be no effect on local employment.

Comments may be submitted to Jacquelyn McDonald, Director, Office of the Board of Health, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, (512) 458-7484. Comments on the proposed section will be accepted for 30 days following publication in the Texas Register .

The repeal is proposed under the Health and Safety Code, §11.016, which allows the board to establish advisory committees; the Government Code, Chapter 2110, which sets standards for the evaluation of advisory committees by the agencies for which they function; and the Health and Safety Code, §12.001, which provides the board with authority to adopt rules for the performance of every duty imposed by law upon the board, the department, and the commissioner of health.

The proposed repeal affects the Health and Safety Code, Chapters 11, 12, and 91; and the Government Code, Chapter 2110.

§91.21.The Prostate Cancer Advisory Committee.

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

Filed with the Office of the Secretary of State on May 8, 2003.

TRD-200302863

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: June 22, 2003

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


Chapter 98. HIV AND STD PREVENTION

Subchapter C. TEXAS HIV MEDICATION PROGRAM

1. GENERAL PROVISIONS

The Texas Department of Health (department) proposes amendments to §§98.101 - 98.106, repeal of §§98.107 - 98.117, and new §§98.107 - 98.119, concerning the Texas HIV Medication Program.

Specifically, the department is requesting the ability to implement cost containment measures, outlined in the rules, as needed to address a substantial budgetary shortfall in the program and to ensure that the department is able to continue delivering program services to individuals infected with the human immunodeficiency virus (HIV).

An amendment to §98.101 reflects minor changes in wording regarding the purpose of the program. An amendment to §98.102 adds a definition for Eligible Metropolitan Area and deletes a definition for the HIV H.O.P.E. (Health Options to Promote Employment) Project. An amendment to §98.103 adds a provision that the program will not approve the dispensing of medication(s) in excess of a 30-day supply. An amendment to §98.104 includes a minor change for clarity. An amendment to §98.105 establishes the program's priority to serve eligible women and infants, and to children younger than 18 years of age. An amendment to §98.106 outlines the general eligibility criteria for participation in the program. New §98.107 establishes medical eligibility criteria for the program. New §98.108 establishes residency eligibility criteria for the program. New §98.109 establishes financial eligibility criteria for the program. New §98.110 establishes the process for applying to the program. New §98.111 establishes how the program will maintain confidentiality of individuals who apply and receive services from the program. New §98.112 establishes how the program will distribute medications. New §98.113 establishes that the program will only deliver services through pharmacies approved by the program. New §98.114 establishes that pharmacies participating in the program may collect a co-payment for each prescription dispensed and that the program will pay the dispensing fees for Medicaid clients. New §98.115 establishes cost containment measures, such as, cease enrollment of new clients who reside in eligible metropolitan areas; cease enrollment of all new clients; implement medical criteria; charge client fees; and/or have the lowest eligibility criteria not lower than 125% of federal poverty level. New §98.116 establishes that the department may impose charges on clients enrolled in the program using a sliding fee scale and defines how the program will collect the fees. New §98.117 establishes the criteria for denial of applications to the program and termination of client benefits. New §98.118 establishes appeal procedures when a person wishes to dispute the program's decision concerning either eligibility or funding. New §98.119 establishes that the department is not required to offer an opportunity to dispute the decision to deny or terminate client status when the department's actions result from the exhaustion of funds.

Government Code, §2001.039, requires that each state agency review and consider for re-adoption each rule adopted by that agency pursuant to Government Code, Chapter 2001 (Administrative Procedure Act). The section numbers have been reviewed and the department has determined that reasons for adopting the sections continue to exist; however, §§98.101 - 98.106 are being amended; §§98.107 - 98.117 are being repealed; and §§98.107 - 98.119 are being proposed as new.

The department published a Notice of Intention to Review the sections as required by Government Code, §2001.039, in the Texas Register on April 28, 2000, (25 TexReg 3801). No comments were received due to the publication of this notice.

Janet D. Lawson, M.D., Acting Chief, Bureau of HIV and STD Prevention, has determined that for each year of the first five years the sections are in effect there will be fiscal implications as a result of administering the rules as proposed. In the event that the temporary cost-containment measure of cost-sharing premiums is initiated because of budget shortfalls, the effect on state government will be an estimated increase in revenue to the state of approximately $200,000 to $400,000 per year as a result of proposed cost sharing premiums. It is estimated that costs to the state to administer the new provisions will be $100,000 per year. Other revenue will be used to offset the program costs; the net effect will be no fiscal impact to the state or local government.

Janet D. Lawson, M.D., Acting Chief, Bureau of HIV and STD Prevention, has also determined that for each year of the first five years the sections are in effect, the public benefits anticipated as a result of enforcing or administering the sections will maintain the delivery of the program to eligible persons with HIV disease. There will be no effect on micro-businesses or small businesses because they do not participate in any component of the program. There are anticipated economic costs to clients enrolled in the program due to the proposed cost sharing premiums. If the program ceases enrollment to new clients or to clients living in Title I Eligible Metropolitan Area Planning Bodies, costs may be incurred to local communities. There is no anticipated impact on local employment.

Comments on the proposal my be submitted to Janet D. Lawson, M.D., Acting Chief, Bureau of HIV and STD Prevention, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3199, (512) 490-2505. Comments will be accepted for 30 days following publication of this proposal in the Texas Register .

25 TAC §§98.101 - 98.119

The amendments and new sections are proposed under the Health and Safety Code, §85.063, which provides the board authority to adopt rules necessary to establish eligibility guidelines to ensure the most appropriate distribution of funds; and §12.001, which provides the Texas Board of Health (board) with the authority to adopt rules for the performance of each duty imposed by law on the board, the department, and the commissioner of health.

The amendments and new sections affect the Health and Safety Code, Chapters 12 and 85.

§98.101.Purpose.

This subchapter establishes procedures and eligibility guidelines for [ These sections implement the provisions of ] the Texas HIV Medication Program (program) as required in the [ authorized by the Human Immunodeficiency Virus Services Act, ] Health and Safety Code, §85.063 [ §§85.061-85.066 ]. The program , established under the authority of the Health and Safety Code, Chapter 85, Subchapter C, HIV Medication Program, provides prescription drug assistance to low-income individuals with HIV disease. [ shall assist ] Hospital [ hospital ] districts, local health departments, public or nonprofit hospitals and clinics, and nonprofit community organizations may request assistance from the program with [ , and HIV-infected individuals in ] obtaining public health pricing for medications to treat individuals with HIV disease [ that have been shown to be effective in reducing hospitalizations due to HIV-related conditions and approved by the Texas Board of Health for program coverage ].

§98.102.Definitions.

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

(1)-(5) (No change.)

(6) Eligible Metropolitan Area--a metropolitan area that is eligible to receive direct federal funding as defined in 42 U.S.C. 300ff-17.

(7) [ (6) ] HIV--Human immunodeficiency virus infection as defined by the Centers for Disease Control and Prevention.

(8) [ (7) ] Legally responsible person--A parent, managing conservator, or other person that is legally responsible for the support of a minor, a ward, or himself/herself.

(9) [ (8) ] Minor--A person who has not reached his or her 18th birthday and who has not been emancipated by a court or who is not married or recognized as an adult by the State of Texas.

(10) [ (9) ] Program--The Texas HIV Medication Program established under the Health and Safety Code, Chapter 85, Subchapter C.

[(10) Project--The HIV H.O.P.E. (Health Options to Promote Employment) Project as outlined in Rider 54 to the Texas Department of Health portion of the General Appropriations Act of the 75th Legislature.]

(11)-(12) (No change.)

§98.103.Medication Coverage.

(a) (No change.)

(b) The program will not approve the dispensing of medication(s) in excess of a 30-day supply.

(c) [ (b) ] A list of the approved medications and specific eligibility criteria for them may be obtained from the Texas Department of Health, Bureau of HIV and STD Prevention, Texas HIV Medication Program, 1100 West 49th Street, Austin, Texas 78756-3199 or on the program's website at: http://www.tdh.state.tx.us/hivstd/meds/document.htm .

§98.104.Nondiscrimination.

The department operates this [ the ] program in a manner that allows full participation of individuals regardless of their race, color, national origin, or handicapping conditions. In addition and for purposes of the program, discrimination on the basis of gender or sexual orientation is prohibited.

§98.105.Priority.

The department shall give priority to participation in the program to eligible women and infants, and to children below the age of [ The Texas HIV Medication Program will coordinate with the department's Bureau of Chronically Ill and Disabled Children Services for the provision of HIV medication for all applicants under ] 18 as specified in 42 U.S.C. 300ff-21, and Health and Safety Code §85.062 [ years of age ].

§98.106. General Eligibility Criteria .

A person is eligible to participate in the program if the person applying to the program:

(1) [ is diagnosed with HIV infection and ] meets the [ drug-specific ] medical eligibility criteria in §98.107 of this title (relating to Medical Eligibility Criteria) [ established by the program ];

(2) meets the residency eligibility criteria in §98.108 [ of §98.113 ] of this title (relating to Residency Eligibility Criteria); [ (relating to Residency; Documentation of Residency). ]

(3) meets the financial eligibility criteria in §98.109 of this title (relating to Financial Eligibility Criteria) [ is under the care of a licensed physician who prescribes the medication(s) ];

(4) requests assistance in obtaining only medications provided under [ covered by ] the program [ as described in §98.103 of this title (relating to Medication Coverage) ]; and

(5) submits a completed application for assistance as described in §98.110 of this title (relating to Application Process) [ meets the financial eligibility criteria of the program ].

§98.107.Medical Eligibility Criteria.

(a) A person is medically eligible to participate in the program if the person applying to the program:

(1) provides evidence that the applicant has a diagnosis from a licensed physician of HIV disease; and

(2) is under the care of a physician licensed to practice in Texas who prescribes the medications(s).

(b) Exceptions to the Medical Eligibility Criteria can be made at the discretion of the Chief of the Bureau of HIV and STD Prevention.

§98.108.Residency Eligibility Criteria.

The program requires and the client must present documentation of Texas residency during the program's review of the client's application for services. Documents that may provide evidence of residency include:

(1) documents issued by the state or federal government, e.g., driver's license or identification card issued by the Texas Department of Public Safety; a motor vehicle registration or automobile registration form; a current Texas voter registration card; or a current Texas Medicaid card;

(2) documents relating to the applicant's income, e.g., a recent payroll check; retirement or social security check; or disability check;

(3) all documents must be in the name of the applicant unless the applicant is a dependent minor or a ward. In that event, the documents may be in the name of the legally responsible person; and

(4) the program may verify residency periodically during the receipt of services and if requested by the program, a client must provide additional documentation.

§98.109.Financial Eligibility Criteria.

(a) A person is financially eligible for the program if he or she:

(1) is not covered for approved program medication(s) under the Texas Medicaid Program;

(2) does not qualify for assistance under any State compensation program, under an insurance policy unless the insurance company provides less than full coverage for prescription medication, or under any other state or federal health benefits program; and

(3) has an annual gross income that does not exceed 200% of the most recently published federal poverty income guidelines.

(b) Annual gross income.

(1) An applicant's annual gross income (if single), or the combined annual gross income of the applicant and his or her spouse.

(2) For a minor, the child's annual gross income if the child is an emancipated minor or meets the criteria established in Family Code, Chapter 32, §32.003, or the (combined) annual gross income of the parent(s). The spouse or the parent must be living in the same household as the child at the time of application.

§98.110.Application Process.

(a) To request an application packet, call toll-free 1-800-255-1090 or write to: Texas Department of Health, Bureau of HIV and STD Prevention, Texas HIV Medication Program, 1100 West 49th Street, Austin, Texas 78756-3199. The program's client application for assistance is also available online at the following URL: http://www.tdh.state.tx.us/hivstd/meds/document.htm.

(b) Submit completed applications along with certification forms to: Texas Department of Health, Bureau of HIV and STD Prevention, Texas HIV Medication Program, 1100 West 49th Street, Austin, Texas 78756-3199.

§98.111.Confidentiality.

(a) No information that could identify an individual applicant will be released except as authorized by law and in accord with §1.501 of this title (relating to Privacy of Health Information). Applicants are advised that, in addition to the department, their physician(s) and pharmacist(s) will be aware of their diagnosis.

(b) The department may use or disclose individual health information to provide, coordinate, or manage health care or related services. This includes referring the client to other health care resources. The department may contact a program participant to discuss enrollment benefits, resources for treatment, or other health-related information as necessary.

(c) An individual may request a copy of the department's privacy notice by writing to: Texas Department of Health, Privacy Officer, 1100 West 49th Street, Austin, Texas 78756. More information pertaining to the Health Insurance and Portability and Accountability Act (HIPPA) is available online from the department at the following URL: http://www.tdh.state.tx.us/hipaa/default.htm.

§98.112.Program Distribution of Medications.

(a) The department will contract with a pharmaceutical wholesaler for purchase of drugs. The Texas Department of Health, Pharmacy Division will distribute drugs to pharmacies participating in the program and a mail order pharmaceutical distributor for the dispensing of drugs directly to clients who reside outside areas covered by participating pharmacies.

(b) Program funds must be used as payor of last resort and coordinated with other local, state, and federal funds, including Medicaid.

§98.113.Participating Pharmacy.

The program will only deliver services through pharmacies approved by the program that have signed a Memorandum of Agreement with the department.

§98.114.Prescription Fees.

A copayment may be collected by a participating pharmacy for each prescription dispensed in accordance with the existing Memorandum of Agreement with the department. Medicaid clients will have their dispensing fees paid for by the program.

§98.115.Program Budget.

(a) To ensure the program's expenditures do not exceed the program's budget, the department will analyze program expenditures as follows.

(1) Determine the annual average cost per client using program expenditures from the previous 12 months. The annual average cost per client is calculated by dividing the total amount of funds expended during a 12-month period into the total number of clients served during the same 12-month period.

(2) Project the number of clients that may be served during the next 12-month period using current budget. The projected number of clients that may be served is calculated by dividing the program's total available dollars by the annual average cost per client derived from paragraph (1) of this subsection.

(b) The department will perform an analysis of program expenditures every month using the methodology in subsection (a) of this section to determine if funds are sufficient to meet projected expenditures.

(c) To insure that expenditures do not exceed the program's budget, the department may implement the following temporary cost-containment measures as necessary.

(1) Cost-containment measures may be implemented in the following order.

(A) Medical criteria must meet the most recent Federal Department of Health and Human Services Guidelines for the Use of Antiretroviral Agents in HIV-infected adults and adolescents. Present medical criteria is a CD4 +T-cell count at or below 350 cells per cubic millimeter and/or an HIV viral load greater than 30,000 copies per milliliter when using the branched DNA test or more than 55,000 copies per milliliter when using the RT-PCR test.

(B) Cease enrollment of new clients who reside in an eligible metropolitan area.

(C) Cease enrollment of all new clients.

(D) Client fees as defined in §98.116 of this title (relating to Client Charges, Sliding Fee Scale).

(E) Lower eligibility criteria not lower than 125% of federal poverty level.

(2) As funds become available, the department will reverse the cost-containment measures in the reverse order of which they were implemented.

§98.116.Client Charges, Sliding Fee Scale.

(a) The department may impose charges on clients enrolled in the program using the sliding fee scale described in this section. The collection of client fees are authorized under 42 U.S.C. 300ff-27(c) and Health and Safety Code, §85.065.

(b) Individual client charges set by the program are assessed using the gross annual income guidelines described in section §98.109 (relating to Financial Eligibility Criteria) of this title and are in accord with the most current version of the federal poverty guidelines received by the department.

(c) The department will charge fees in the following amounts:

(1) less than or equal to 100%, no fee charged;

(2) 101% - 125% client pays $20.00;

(3) 126% - 150% client pays $30.00;

(4) 151% - 175% client pays $40.00;

(5) 176% - 200% client pays $50.00;

(6) 201% - 250% client pays $60.00;

(7) 251% - 300% client pays $70.00; or

(8) 301% or greater client pays $100.00.

(d) Cost sharing premiums paid by clients will be collected on a monthly basis as defined by the program. Monies collected from client cost sharing premiums will be put back in the program's budget for the purpose of purchasing more medications.

§98.117.Denial of Application or Termination of Client Benefits.

(a) Individuals already receiving services will have their application denied or services terminated only for one or more of the following reasons.

(1) Services will be denied or terminated if:

(A) the person is not a resident of the state as required in §98.108 of this title (relating to Residency Eligibility Criteria);

(B) the annual gross income does not meet the criteria set in §98.109 of this title (relating to Financial Eligibility Criteria);

(C) the person does not provide evidence to meet the criteria set in §98.107 of this title (relating to Medical Eligibility Criteria); or

(D) the client notifies the program in writing that he/she no longer wants to receive services.

(2) Services may be terminated if:

(A) the applicant or client submits an application form or any document required in support of the application which contains a misstatement of fact which is material to determining program eligibility;

(B) the client submits false claims to a participating pharmacy;

(C) the client has not requested or used services during any period of three consecutive months;

(D) program funds are exhausted.

(b) Denial, modification, suspension, or termination of services to a client will be governed by the procedures required by §98.118 of this title (relating to Appeal Procedures), and §98.119 of this title (relating to Exceptions from Appeal Procedures).

§98.118.Appeal Procedures.

(a) A person may initiate the appeal process by notifying the department's Bureau of HIV and STD Prevention that the person wishes to dispute the program's decision concerning either eligibility or funding. The written notice must contain sufficient reasons for the appeal. The notice should be addressed to the Texas Department of Health, Bureau of HIV and STD Prevention, 1100 West 49th Street, Austin, Texas, 78756-3199.

(b) A department review panel will hear the appeal. The panel shall consist of the Chief, Bureau of HIV and STD Prevention; the Director, HIV/STD Clinical Resources Division; and the Program Manager, Texas HIV Medication Program, and the Chief, Bureau of Communicable Disease Prevention and Control. The appellant(s) may present the case in person before the panel. After hearing all testimony, the panel will issue a written decision. The panel's decision shall be final.

(c) Written complaints are subject to the Open Records Act, Government Code, Chapter 552.

§98.119.Exceptions from Appeal Procedures.

The department is not required to offer an opportunity to dispute the decision to deny or terminate client status, if the department's actions result from the exhaustion of funds appropriated to the department for the Health and Safety Code, Chapter 85, Subchapter C, Texas HIV Medication Program.

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

Filed with the Office of the Secretary of State on May 12, 2003.

TRD-200302956

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: June 22, 2003

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


25 TAC §§98.107 - 98.117

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

The repeals are proposed under the Health and Safety Code, §85.063, which provides the board authority to adopt rules necessary to establish eligibility guidelines to ensure the most appropriate distribution of funds; and §12.001, which provides the Texas Board of Health (board) with the authority to adopt rules for the performance of each duty imposed by law on the board, the department, and the commissioner of health.

The repeals affect the Health and Safety Code, Chapters 12 and 85.

§98.107.Criteria for Financial Eligibility.

§98.108.Application Process.

§98.109.Confidentiality.

§98.110.Payment for Approved Medication(s).

§98.111.Participating Pharmacy.

§98.112.Prescription Fees.

§98.113.Residency; Documentation of Residency.

§98.114.Denial of Application or Termination of Client Benefits.

§98.115.Appeal Procedures.

§98.116.Exceptions from Appeal Procedures.

§98.117.Public Complaints.

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

Filed with the Office of the Secretary of State on May 12, 2003.

TRD-200302957

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: June 22, 2003

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


Chapter 145. NURSING FACILITIES AND RELATED INSTITUTIONS

Subchapter H. LONG-TERM CARE SERVICES FOR THE ELDERLY

25 TAC §145.121

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

The Texas Department of Health (department) proposes the repeal of §145.121, concerning a memorandum of understanding between the department and the Texas Department on Aging, the Texas Department of Human Services, and the Texas Mental Health and Mental Retardation for long term care services for the elderly.

Government Code, §2001.039, requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). The department has reviewed §145.121 and has determined that the reason for adopting the section no longer exists. Human Resources Code, §101.031, provided for a memorandum of understanding to define the responsibilities of each agency for updating biennially the long-term care state plan for the elderly. Human Resources Code, §101.031, was repealed in 1995, thus making the rule obsolete.

The department published a Notice of Intention to Review for §145.121 in the Texas Register on February 12, 1999 (24 TexReg 1003). No comments were received due to publication of this notice.

Susan K. Steeg, General Counsel, has determined that for each year of the first five years the repeal of this section is in effect, there will be no fiscal impact on state or local government.

Ms. Steeg has also determined that for each year of the first five years the repeal of §145.121 is in effect, the public benefit anticipated as a result of the repeal will be to eliminate a rule that is unnecessary because there is no statutory requirement for the rule. There will be no cost effects on micro-businesses or small businesses. This was determined by interpretation of the rules that micro-businesses or small businesses will not be required to alter their business practices as a result of the proposed repeal of this rule. There are no economic costs to persons who may be affected by the proposed repeal of this rule. There is no anticipated impact on local employment.

Comments on the proposal may be submitted to Robin Carter, Legal Assistant, Office of General Counsel, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, (512) 458-7236 or by email at the following address: robin.carter@tdh.state.tx.us. Comments will be accepted for 30 days following publication of this proposal in the Texas Register .

The repeal of this section is proposed under Health and Safety Code, §12.001, which provides the Texas Board of Health (board) with authority to adopt rules to implement every duty imposed by law on the board, the department and the commissioner.

The repeal of this section implements Government Code, §2001.039.

§145.121.Memorandum of Understanding between Texas Department on Aging, the Texas Department of Human Services, the Texas Department of Health, and the Texas Mental Health and Mental Retardation Concerning Long-term Care Services for the Elderly.

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

Filed with the Office of the Secretary of State on May 8, 2003.

TRD-200302862

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: June 22, 2003

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


Chapter 146. TRAINING AND REGULATION OF PROMOTORES(AS) OR COMMUNITY HEALTH WORKERS

25 TAC §§146.1, 146.3 - 146.10

The Texas Department of Health (department) proposes amendments to §§146.1 and 146.3-146.10, concerning the regulation of training and certification of promotores(as) or community health workers. Specifically, the sections cover definitions, applicability, application requirements and procedures, application requirements and procedures for instructors, application requirements and procedures for sponsoring institutions and training programs, types of certificates and applicant eligibility, standards for approval of curricula, certificate issuance and renewals, and continuing education requirements. The amended language clarifies the rules and improves ability of promotores(as) or community health workers to obtain the training and certification established by Health and Safety Code, Chapter 48. The only section of these rules not amended by this proposal is §146.2 concerning the Promotor(a) or Community Health Worker Training and Certification Advisory Committee. Section 146.2 will be brought to the Board of Health (board) as a different agenda item.

Health and Safety Code, Chapter 48, requires the department to establish a program designed to train and educate persons who act as promotoras or community health workers. This chapter also requires minimum standards for the certification of promotores(as) or community health workers. These rules are reasonable and necessary to accomplish this legislative mandate.

Government Code, §2001.039, requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to Government Code, Chapter 2001, (Administrative Procedure Act). The sections have been reviewed and the department has determined that reasons for adopting the sections continue to exist; however, §§146.1 and 146.3 - 146.10 are being amended.

The department published a Notice of Intention to Review the sections in regards to Government Code, §2001.039, in the May 2, 2003, issue of the Texas Register (28 TexReg 3244). No comments were received due to the publication of this notice.

Cecilia Berrios, Community Health Promotion Specialist, Office of Public Health Practice has determined that for each year of the first five years that the sections will be in effect there will be no fiscal implications to state or local governments as a result of enforcing or administering the sections as proposed. There may be impacts on such entities to the extent they choose to become involved as employers, sponsors, or education providers to promotores(as) or community health workers, but such involvement is voluntary on their part.

Ms. Berrios has determined that for each year of the first five years the proposed sections are in effect the public health benefit anticipated as a result of these amendments is increased clarity of the rules, better conformance to statute, and improved ability of promotores(as) or community health workers to obtain the training and certification established by Health and Safety Code, Chapter 48. There is no anticipated cost to small businesses or micro-businesses nor to persons who are required to comply with the sections as proposed because becoming a promotora or community health care worker or sponsor, or educator is voluntary. Those who choose to become certified under these rules (or their sponsors) will incur the cost of obtaining required education. This cost will vary depending on where this education is obtained. There is no impact on local employment.

Comments on the proposal may be submitted to Cecilia Berrios, Office of Public Health Practice, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, telephone (512) 458-7770, or cecilia.berrios@tdh.state.tx.us. Comments will be accepted for 30 days after publication in the Texas Register .

The amendments are proposed under the Health and Safety Code, §48.003, which requires the board to adopt rules that provide minimum standards and guidelines on training; §48.002, which allows the board to provide for exemption from certification by rule; and §12.001, which provides the board with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health.

The amendments affect Health and Safety Code, Chapter 48; and implement Government Code, §2001.039.

§146.1.Definitions.

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

(1) Administrator--The department employee designated as the administrator of regulatory activities authorized by the Health and Safety Code , Chapter 48 [ 46 ].

(2)-(4) (No change.)

(5) Committee--The Promotor(a) or [ and ] Community Health Worker Training and Certification Advisory Committee established by §146.2 of this title.

(6) (No change.)

(7) Health--The extent to which an individual or group is able to realize aspirations and satisfy needs, and to change or cope with the environment. Health is a resource for everyday life, not the objective of living; it is a positive concept emphasizing social and personal resources as well as physical capabilities. This definition is from the World Health Organization, "Ottawa Charter for Health Promotion, 1986," and is available at http://www.who.dk/AboutWHO/Policy/20010827_2 .

(8)-(12) (No change.)

§146.3.Applicability.

(a) The purpose of this section is to describe who is eligible for this [ voluntary ] training and certification program under the Health and Safety Code, Chapter 48 [ 46 ].

(b) (No change.)

(c) Participation in a training and education program established under this section is voluntary for promotores(as) or community health workers who provide services without receiving compensation, and mandatory for promotores(as) or community health workers who provide services for compensation. [ Nothing in this chapter requires promotores(as) or community health workers, instructors, sponsoring institutions or training programs to participate in this voluntary training and certification program. ]

§146.4.Application Requirements and Procedures for Promotores(as) or Community Health Workers.

(a)-(b) (No change.)

(c) Required application materials. The application form shall contain the following items:

(1) (No change.)

(2) a statement that the applicant understands the Health and Safety Code , Chapter 48 [ 46 ] and this chapter and agrees to abide by them;

(3)-(9) (No change.)

(d) (No change.)

(e) Disapproved applications.

(1)-(4) (No change.)

(5) An applicant whose application has been disapproved may appeal the disapproval under the fair hearing procedures found in Chapter 1, Subchapter C of this title (relating to Fair Hearing Procedures).

(f) Application processing. A written notice stating that the application has been approved may be sent in lieu of the notice of acceptance of a complete application. The following periods of time shall apply from the date of receipt of an application until the date of issuance of a written notice that the application is complete and accepted for filing or that the application is deficient and additional specific information is required.

(1) Letter of acceptance of application for certification - 90 [ 30 ] days.

(2) Letter of application deficiency - 90 [ 30 ] days.

§146.5.Application Requirements and Procedures for Instructors.

(a)-(b) (No change.)

(c) Required application materials. The application form shall contain the following items:

(1) (No change.)

(2) a statement that the applicant understands the Health and Safety Code, Chapter 48 [ 46 ] and this chapter and agrees to abide by them;

(3)-(9) (No change.)

(d) (No change.)

(e) Disapproved applications.

(1)-(2) (No change.)

(3) The applicant whose application has been disapproved under paragraph (1) of this subsection shall be permitted to reapply after a period of not less than six months from the date of the disapproval and shall submit a current application satisfactory to the department, of compliance with the then current requirements of this chapter and the provisions of the Health and Safety Code, Chapter 48 [ 46 ].

(4) An applicant whose application has been disapproved may appeal the disapproval under the fair hearing procedures found in Chapter 1, Subchapter C of this title.

(f) Application processing. A written notice stating that the application has been approved may be sent in lieu of the notice of acceptance of a complete application. The following periods of time shall apply from the date of receipt of an application until the date of issuance of a written notice that the application is complete and accepted for filing or that the application is deficient and additional specific information is required.

(1) Letter of acceptance of application for certification - 90 [ 30 ] days.

(2) Letter of application deficiency - 90 [ 30 ] days.

§146.6.Application Requirements and Procedures for Sponsoring Institutions and Training Programs.

(a)-(b) (No change.)

(c) Required application materials. The application form shall contain the following items:

(1) specific organizational data, current and previous experience with training or sponsoring training for promotores(as) or community health workers, educational and training qualifications of staff, accrediting information, curricula and collateral materials, workplace assurances, registration policies and procedures for promotores(as) or community health workers. Applicants must meet the minimum eligibility requirements for sponsoring institutions or training program certification as set forth in §146.7(f) of this title (relating to Types of Certificates and Applicant Eligibility);

(2) a statement that the applicant understands Health and Safety Code, Chapter 48 [ 46 ] and this chapter and agrees to abide by them;

(3)-(8) (No change.)

(d) (No change.)

(e) Disapproved applications.

(1)-(3) (No change.)

(4) An applicant whose application has been disapproved may appeal the disapproval under the fair hearing procedures found in Chapter 1, Subchapter C of this title.

(f) Application processing. A written notice stating that the application has been approved may be sent in lieu of the notice of acceptance of a complete application. The following periods of time shall apply from the date of receipt of an application until the date of issuance of a written notice that the application is complete and accepted for filing or that the application is deficient and additional specific information is required.

(1) Letter of acceptance of application for certification - 90 [ 30 ] days.

(2) Letter of application deficiency - 90 [ 30 ] days.

§146.7.Types of Certificates and Applicant Eligibility.

(a) Purpose. The purpose of this section is to set out the types of certificates issued and the qualifications of applicants.

(1) The Texas Department of Health (department) shall issue promotor(a) or community health worker certificates of competence, instructor certificates, and sponsoring institutions or training program certificates. A certificate will recognize all those who have performed promotor(a) or community health worker services between July 1997 to December 2002 [ during the three-year period preceding the effective date of these rules ] and not less than 1000 cumulative hours between July 1997 to December 2002 [ during any 12 consecutive months ]. A certificate will recognize all those who have successfully completed an entry-level training and certification program.

(2)-(7) (No change.)

(b) Special provisions for persons who have performed promotor(a) or community health worker services between July 1997 to December 2002 [ during the three year period, preceding the effective date of these rules ]. Upon submission of the application forms by the practicing promotor(a) or community health worker and upon approval by the department, the department shall issue a certificate of competence to a person who has performed promotor(a) or community health worker services for not less than 1000 cumulative hours between July 1997 to December 2002 [ during any 12 consecutive months ], as documented on form(s) prescribed by the department.

(c) Special provisions for persons who are nationally certified health education specialists in good standing, other licensed/certified healthcare professionals including social workers in good standing who have acted as instructors of promotores(as) or community health workers , and for promotores(as) or community health workers who have acted as supervisors or as trainers and [ , ] have experience in instructing or training promotores(as) [ performing promotor(a) ] or community health workers [ worker services ] for not less than 1000 cumulative hours between July 1997 to December 2002 [ during any 12 consecutive months, or have attended a competency-based training program within the three years from the date these rules are final ]. Upon submission of the application forms by an instructor, other licensed/certified healthcare professional or certified health education specialist and upon approval by the department, the department shall issue an instructor certificate to a person who is certified by the National Commission for Health Education Credentialing, Inc., or who is a licensed/certified healthcare professional and to a promotor(a) or community health worker who meets the above qualifications.

(d)-(e) (No change.)

(f) Minimum eligibility requirements for sponsoring institution or training program certification. The following requirements apply to all institutions or programs applying for certification:

(1) usage of an approved curriculum for promotor(a) or community health worker training, instructor certification and/or for continuing education of promotores(as) or community health workers and instructors that meets the standards and guidelines established by the department and as set forth in §146.8 of this title; [ and ]

(2) submission of a satisfactory completed application on a form supplied by the department ; and [ . ]

(3) at least two years of experience with training or sponsoring training for promotores(as) or community health workers.

§146.8.Standards for the Approval of Curricula.

(a) Purpose. The purpose of this section is to establish the minimum standards for approval of curricula and programs to train persons to perform promotor(a) or community health worker services and to qualify [ quality ] for the certificate of competence.

(b) (No change.)

§146.9.Certificate Issuance and Renewals.

(a)-(b) (No change.)

(c) Certificate renewal. Each promotor(a) or community health worker, instructor and sponsoring institution or training program shall renew the certificate biennially.

(1)-(2) (No change.)

(3) The department may not renew the certificate of a promotor(a) or community health worker, instructor or sponsoring institution or training program who is in violation of Health and Safety Code, Chapter 48 [ the Act ] or this chapter at the time of renewal.

(d)-(e) (No change.)

§146.10.Continuing Education Requirements.

(a) (No change.)

(b) General. Continuing education requirements for recertification shall be fulfilled during each biennial renewal period. A promotor(a) or community health worker must complete 20 [ 80 ] contact hours of continuing education acceptable to the department during each biennial renewal period. An instructor must complete at a minimum 20 [ 32 ] contact hours of continuing education acceptable to the department during each biennial renewal period.

(1)-(3) (No change.)

(c)-(f) (No change.)

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

Filed with the Office of the Secretary of State on May 8, 2003.

TRD-200302861

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: June 22, 2003

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


Chapter 229. FOOD AND DRUG

Subchapter O. LICENSING OF WHOLESALE DISTRIBUTORS OF DRUGS--INCLUDING GOOD MANUFACTURING PRACTICES

25 TAC §229.255

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

The Texas Department of Health (department) proposes the repeal of §229.255, concerning the Wholesale Drug Distributors Advisory Committee (committee). The committee has provided advice to the Texas Board of Health (board) and the department in the area of licensing of wholesale drug distributors.

In 1993, the Texas Legislature passed Senate Bill 383 (now codified in the Government Code, Chapter 2110), which requires that each state agency adopt rules on advisory committees. The rules must state the purpose of the committee, describe the tasks of the committee, describe the manner in which the committee will report to the agency, and establish a date on which the committee will be automatically abolished unless the governing body of the agency affirmatively votes to continue the committee's existence.

In 2002, the board established a rule relating to the Wholesale Drug Distributors Advisory Committee. The rule states that the committee will automatically be abolished on September 1, 2003, and the board has determined that the committee should be abolished on that date. Issues relating to the type of advice previously provided by the committee are better addressed through the establishment of ad hoc workgroups.

Jacquelyn McDonald, Director, Office of the Board of Health, has determined that for each year of the first five years the repeal is in effect, there will be no fiscal implications for state or local governments as a result of enforcing or administering this section since the section will no longer exist.

Ms. McDonald has also determined that for each year of the first five years the repeal is in effect, the public benefit anticipated as a result of repealing the section will be increased flexibility and breadth in obtaining specific input on issues related to licensing of wholesale drug distributors. There will be no effect on micro-businesses or small businesses. The repeal of the rule will not require small businesses and micro-businesses to alter their business practices. There are no economic costs to persons previously required to comply with the section as a result of this repeal. There will be no effect on local employment.

Comments may be submitted to Jacquelyn McDonald, Director, Office of the Board of Health, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, (512) 458-7484. Comments on the proposed section will be accepted for 30 days following publication in the Texas Register .

The repeal is proposed under the Health and Safety Code, §11.016, which allows the board to establish advisory committees; the Government Code, Chapter 2110, which sets standards for the evaluation of advisory committees by the agencies for which they function; and the Health and Safety Code, §12.001, which provides the board with authority to adopt rules for the performance of every duty imposed by law upon the board, the department, and the commissioner of health.

The proposed repeal affects the Health and Safety Code, Chapter 11; and the Government Code, Chapter 2110.

§229.255.Wholesale Drug Distributors Advisory Committee.

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

Filed with the Office of the Secretary of State on May 8, 2003.

TRD-200302859

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: June 22, 2003

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


Subchapter X. LICENSURE OF DEVICE DISTRIBUTORS AND MANUFACTURERS

25 TAC §229.444

The Texas Department of Health (department) proposes an amendment to §229.444, concerning the Device Distributors and Manufacturers Advisory Committee (committee). The committee has provided advice to the Texas Board of Health (board) and the department in the area of licensure of device distributors and manufacturers. The committee is established under the Health and Safety Code, §11.016, which allows the board to establish advisory committees; and the Health and Safety Code, §431.275, which requires the establishment of the committee. The committee is governed by the Government Code, Chapter 2110, concerning state agency advisory committees.

Government Code, §2001.039, requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). The department has reviewed §229.444 and has determined that reasons for adopting the section continue to exist; however, changes were necessary as described in this preamble.

The department published a Notice of Intention to Review for §229.444 in the Texas Register on September 28, 2001 (26 TexReg 7581). No comments were received due to publication of this notice.

In 1993, the Texas Legislature passed Senate Bill 383 (now codified in the Government Code, Chapter 2110), which requires that each state agency adopt rules on advisory committees. The rules must state the purpose of the committee, describe the tasks of the committee, describe the manner in which the committee will report to the agency, and establish a date on which the committee will be automatically abolished unless the governing body of the agency affirmatively votes to continue the committee's existence.

In 1999, the board established a rule relating to the Device Distributors and Manufacturers Advisory Committee. The rule states that the committee will automatically be abolished on September 1, 2003. The board has now reviewed and evaluated the committee and has determined that the committee should continue in existence until September 1, 2007.

This section amends provisions relating to the operation of the committee. Specifically, language is revised to: continue the committee until September 1, 2007; include additional requirements regarding statements by members; and clarify the components that the committee must include in an annual report to the board.

Jacquelyn McDonald, Director of the Office of the Board of Health, has determined that for each year of the first five years the section is in effect, there will be no fiscal implications for state and local government as a result of amending the section as proposed.

Ms. McDonald has also determined that for each year of the first five years the section is in effect, the public benefit anticipated as a result of amending the section will be to provide a continuance of the committee and continued advice to the department on this important issue. There will be no costs to small businesses or micro-businesses resulting from compliance with this section, as this section addresses only continuance of the committee and statements by members. There are no anticipated economic costs to persons who are required to comply with the section as proposed. There is no anticipated impact on local employment.

Comments may be submitted to Jacquelyn McDonald, Director, Office of the Board of Health, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, (512) 458-7484. Comments on the proposed section will be accepted for 30 days following publication in the Texas Register .

The amendment is proposed under Health and Safety Code, §§11.016, which allows the board to establish advisory committees; 12.001, which provides the board with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner; 431.275, which requires the establishment of the committee; and Government Code, §2110.005, which requires the department to adopt rules stating the purpose and tasks of its advisory committees.

The proposed amendment affects the Health and Safety Code, Chapters 11, 12, and 431; the Government Code, Chapter 2110; and implements Government Code, §2001.039.

§229.444.Device Distributors and Manufacturers Advisory Committee.

(a)-(d) (No change.)

(e) Review and duration. By September 1, 2007 [ 2003 ], 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)-(m) (No change.)

(n) Statement by members.

(1)-(2) (No change.)

(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 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.

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

(1) (No change.)

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

(3) (No change.)

(p) (No change.)

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

Filed with the Office of the Secretary of State on May 8, 2003.

TRD-200302864

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: June 22, 2003

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


Chapter 295. OCCUPATIONAL HEALTH

Subchapter C. TEXAS ASBESTOS HEALTH PROTECTION

25 TAC §295.73

The Texas Department of Health (department) proposes an amendment to §295.73, concerning the Asbestos Advisory Committee (committee). The committee has provided advice to the Texas Board of Health (board) and the department in the area of asbestos licensing and compliance. The committee is established under the Health and Safety Code, §11.016, which allows the board to establish advisory committees. The committee is governed by the Government Code, Chapter 2110, concerning state agency advisory committees.

Government Code, §2001.039, requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). The department has reviewed §295.73 and has determined that reasons for adopting the section continue to exist; however, changes were necessary as described in this preamble.

The department published a Notice of Intention to Review §295.73 in the Texas Register on May 12, 2000 (25 TexReg 4360). No comments were received due to publication of this notice.

In 1993, the Texas Legislature passed Senate Bill 383 (now codified in the Government Code, Chapter 2110) which requires that each state agency adopt rules on advisory committees. The rules must state the purpose of the committee, describe the tasks of the committee, describe the manner in which the committee will report to the agency, and establish a date on which the committee will be automatically abolished unless the governing body of the agency affirmatively votes to continue the committee's existence.

In 1998, the board established a rule relating to the Asbestos Advisory Committee. The rule states that the committee will automatically be abolished on September 1, 2003. The board has now reviewed and evaluated the committee and has determined that the committee should continue in existence until September 1, 2007.

This section amends provisions relating to the operation of the committee. Specifically, language is revised to: continue the committee until September 1, 2007; reduce the membership from twelve to nine; change the process for filling vacancies in the offices of presiding officer and assistant presiding officer; add additional time requirements for staff to furnish rules to committee members; clarify statements by members; and provide additional components that the committee must include in an annual report to the board.

Jacquelyn McDonald, Director of the Office of the Board of Health, has determined that for each year of the first five years the section is in effect, there will be no fiscal implications for state and local government as a result of amending the section as proposed.

Ms. McDonald has also determined that for each year of the first five years the section is in effect, the public benefit anticipated as a result of amending the section will be to provide a continuance of the committee and continued advice to the department on this important issue. There will be no costs to small businesses or micro-businesses resulting from compliance with this section, as this section addresses only continuance of the committee terms of office, and a revised statement of members. There are no anticipated economic costs to persons who are required to comply with the section as proposed. There is no anticipated impact on local employment.

Comments may be submitted to Jacquelyn McDonald, Director, Office of the Board of Health, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, (512) 458-7484. Comments on the proposed section will be accepted for 30 days following publication in the Texas Register .

The amendment is proposed under Health and Safety Code, §11.016, which allows the board to establish advisory committees; §12.001, which provides the board with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner; and Government Code, §2110.005, which requires the department to adopt rules stating the purpose and tasks of its advisory committees.

The proposed amendment affects the Health and Safety Code, Chapters 11 and 12; and the Government Code, Chapter 2110; and implements Government Code, §2001.039.

§295.73.Asbestos Advisory Committee.

(a)-(d) (No change.)

(e) Review and duration. By September 1, 2007 [ 2003 ], 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 nine [ 12 ] members appointed by the board. The composition of the committee shall include:

(1) three [ four ] consumer representatives; and

(2) six [ eight ] nonconsumer representatives.

(g) (No change.)

(h) Officers. The committee [ chairman of the board ] shall select from its members the [ appoint a ] presiding officer and an assistant presiding officer to begin serving on September 1 of each odd-numbered year.

(1)-(2) (No change.)

(3) The assistant presiding officer shall perform the duties of the presiding officer in case of the absence or disability of the presiding officer. In case 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 [ temporarily ] by vote of the committee [ until a successor is appointed by the chairman of the board ].

(5)-(6) (No change.)

[ (7) The presiding officer and assistant presiding officer serving on August 1, 1999, will continue to serve until the chairman of the board appoints their successors.]

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

(1)-(3) (No change.)

(4) Each member of the committee shall be informed of a committee meeting at least ten [ five ] working days before the meeting. Proposed rules shall be sent to the committee at least ten working days before the meeting.

(5)-(7) (No change.)

(j)-(m) (No change.)

(n) Statement by members.

(1)-(2) (No change.)

(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 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.

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

(1) (No change.)

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

(3) (No change.)

(p) (No change.)

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

Filed with the Office of the Secretary of State on May 8, 2003.

TRD-200302860

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: June 22, 2003

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


Subchapter H. HAZARDOUS CHEMICAL RIGHT-TO-KNOW

25 TAC §§295.181 - 295.183

The Texas Department of Health (department) proposes amendments to §§295.181-295.183, concerning the requirements for operators of different types of facilities to provide information on hazardous chemicals at their facilities to the department, local fire departments, and local emergency planning committees (LEPCs) for the purposes of emergency planning and response and the public's right to know about hazardous chemicals in their communities. The proposed amendment to §295.181 concerns information that must be provided by manufacturing facilities; the proposed amendment to §295.182 concerns information that must be provided by public employers; and the proposed amendment to §295.183 concerns information that must be provided by non-manufacturing facilities.

Government Code, §2001.039, requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Sections 295.181-295.183 have been reviewed and the department has determined that reasons for adopting the sections continue to exist. Revisions were necessary as described in this preamble.

Specifically, the proposed amendments address the reporting of hazardous chemicals (Tier Two forms and electronic Tier Two files), complaints and investigations, assessment of administrative penalties, and fees required for filing reports with the department. Sections 295.181 and 295.182 also address direct citizen access to a facility's chemical information.

The proposed amendments to §§295.181-295.183 add three new definitions, delete one definition, and amend two others to clarify the intent of the rules. The amendments to §§295.181-295.183 also reflect a change in the division name, provide the program's toll free telephone number, clarify that an electronic Tier Two file may be maintained at the facility and submitted to the department in lieu of a completed hard copy Tier Two form, and clarify that the software and procedures for submitting electronic Tier Two files must be approved by the department. In addition, the amendments to §§295.181-295.183 delete temporary standards for reporting locations of rural facilities on the Tier Two form. The board recommended these temporary standards in November 1999 and the expiration date established in the rules has now passed. The amendments to §§295.181-295.183 propose adoption of new latitude and longitude reporting standards used in the current electronic Tier Two software program that has been approved by the department. Since most of the Global Positioning System (GPS) instruments currently used for taking latitude and longitude measurements are capable of meeting the proposed standards and free Internet programs are available to convert measurements from older GPS instruments to meet these standards, these new requirements for reporting latitude and longitude are reasonable. The standards are being proposed to improve mapping accuracy of facility locations that are reported by latitude and longitude measurements.

A notice of intention to review rules was published for §§295.181-295.183 in the April 4, 2003, issue of the Texas Register (28 TexReg 2959) for the state agency review of rules in regards to Government Code, §2001.039. No comments were received following publication of the notice.

Charles Branton, Director, Product Safety Division, has determined that for each year of the first five years the sections are in effect, there will be no fiscal implications to state or local government as a result of enforcing or administering the sections as proposed.

Mr. Branton has also determined that for each year of the first five years the sections are in effect, the public benefit anticipated as a result of enforcing the sections will be increased safety for communities where hazardous chemicals are stored or used due to improved accessibility to chemical data and greater accuracy of mapping data. The proposed amendments are anticipated to improve consistency in reporting forms and data formats. There are no changes being proposed for the subsections in §§295.181-295.183 that are related to Tier Two form filing fees or the number of Tier Two forms that may be consolidated under a single filing fee. Therefore, there will be no costs to micro-businesses or small businesses to comply with the sections as proposed. There are no anticipated economic costs to persons who are required to comply with the sections as proposed. There is no anticipated impact on local employment.

Comments on the proposal may be submitted to Charles Branton, Product Safety Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas, 78756, (512) 834-6773, extension 2260, fax (512) 834-6766. Comments will be accepted for 30 days following publication of this proposal in the Texas Register . In addition, a public hearing on the proposed sections will be held at 9:00 a.m., Wednesday, June 18, 2003, in the Texas Department of Health Auditorium, Room K-100, 1100 West 49th Street, Austin, Texas.

The amendments are proposed under the Health and Safety Code, §§505.016, 506.017, and 507.013, which provide the Texas Board of Health (board) with the authority to adopt necessary rules to administer and enforce Chapters 505, 506, and 507; Health and Safety Code, §12.001, which provides the board with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; and implements Government Code, §2001.039.

The amendments affect the Health and Safety Code, Chapters 505, 506, and 507.

§295.181.Manufacturing Facility Community Right-to-Know.

(a) (No change.)

(b) Definitions. The following words and terms, when used in this section, shall have the following meanings unless the context clearly indicates otherwise.

(1)-(2) (No change.)

(3) Commissioner of health--The director of the Texas Department of Health, as referenced in the Health and Safety Code, §505.004(6).

(4) [ (3) ] Current Tier Two threshold--A quantity which is assigned to a specific hazardous chemical or extremely hazardous substance in the most recent version of Title 40 CFR, Part 370, and which determines whether a specific hazardous chemical or extremely hazardous substance must be included on the Tier Two form.

(5) [ (4) ] Department--The Texas Department of Health.

[(5) Director--The commissioner of the department.]

(6) Electronic Tier Two file--An electronic data file that contains, at a minimum, all of the information required for submission of a hard copy Tier Two form, and which provides the required Tier Two information for each individual reportable chemical.

(7) [ (6) ] EPCRA or SARA, Title III--The federal Emergency Planning and Community Right-To-Know Act, also known as the Superfund Amendments and Reauthorization Act of 1986, Title III, 42 USC, Chapter 116 et seq., and regulations promulgated by the EPA in Title 40 CFR, Parts 355-370.

(8) [ (7) ] EHS or extremely hazardous substance--Any substance as defined in EPCRA, §302, or listed by the EPA in Title 40 CFR, Part 355, Appendices A and B.

(9) [ (8) ] Facility--All buildings, equipment, structures, and other stationary items that are located on a single site or on contiguous or adjacent sites and that are owned or operated by the same person or by any person who controls, is controlled by, or is under common control with that person, and that is in Standard Industrial Classification (SIC) Code 20-39.

(10) Facility chemical list--A chemical inventory that provides information for all reportable hazardous chemicals and EHSs present at a reporting facility, and which is submitted to the department in the form of either a completed electronic Tier Two file or a completed hard copy Tier Two form.

(11) [ (9) ] Facility operator--The person who controls the day-to-day operations of the facility.

(12) [ (10) ] Fire chief--The elected or paid administrative head of the fire department having jurisdiction over a facility.

(13) [ (11) ] Headquarters facility--Either the facility itself when the facility is staffed more than 20 hours per week, or, for facilities which are staffed less than 20 hours per week, the headquarters facility is an office which is staffed full time by the facility operator and which serves as the central office for staff who are responsible for overseeing the operations of the facility.

(14) [ (12) ] Latitude and longitude--A mapping coordinate system, designated in units of decimal degrees, [ minutes, and seconds, ] which serves as a facility location description on the Tier Two form in lieu of a street address.

(15) [ (13) ] LEPC-- The [ the ] Local Emergency Planning Committee, a group of individuals representing a designated emergency planning district and whose membership on the committee has been approved by the Texas State Emergency Response Commission as meeting the requirements of EPCRA, §301.

(16) [ (14) ] Research laboratory--A laboratory that engages in only research or quality control operations. Chemical specialty product manufacturing laboratories, full scale pilot plant operation laboratories that produces products for sale, and service laboratories are not research laboratories.

(17) [ (15) ] Standard Industrial Classification (SIC) Code--The four digit number which describes a facility's primary activity, which is determined by its principal product or group of products produced. For the purposes of the Act, the SIC Code is the one that is assigned to a facility by the Texas Workforce Commission. If a facility does not have a [ an ] SIC Code assigned by the Texas Workforce Commission, then the department must be consulted for assistance in determining the correct code.

(18) [ (16) ] Submission or required submission--The facility chemical list information which is submitted to the department in the form of either a completed hard copy Tier Two form or an electronic Tier Two file for a single facility to comply with subsection (d) of this section. When facility chemical list information for multiple facilities is submitted to the department on one Tier Two form for purposes of paperwork reduction, as allowed by subsection (d)(15) of this section , or as one electronic Tier Two file , then the Tier Two form or electronic file shall be counted by the department as multiple required submissions under subsections (h)(2) and (3) of this section.

(19) [ (17) ] Technically qualified individual--An individual with a professional education and background working in the research or medical fields, such as a physician, a registered nurse, or an individual holding a college bachelor's degree in science.

(20) [ (18) ] Texas Tier Two Cover Sheet form--A form developed by the department to collect general information about each reporting facility which is submitting a facility chemical list.

(21) [ (19) ] Tier Two form--A document that provides information for all reportable hazardous chemicals and EHSs present at a reporting facility. An "annual Tier Two form" provides the information for all hazardous chemicals and EHSs present at a facility at any time during the previous calendar year in quantities that met or exceeded the current Tier Two thresholds. An "initial Tier Two form" is one that provides information for hazardous chemicals or EHSs that meet or exceed the current Tier Two thresholds, but which were not reported on a previously submitted annual Tier Two form. An "updated Tier Two form" is one that provides significant new information concerning an aspect of one or more hazardous chemicals or EHSs which were previously reported on either the annual or first time Tier Two forms submitted by a facility. A "modified Tier Two form" provides information for all hazardous chemicals and EHSs that are present at a facility at a threshold of 500 pounds; this type of report may be prepared in response to a request from a citizen for information, in lieu of the workplace chemical list. The Tier Two form is a set of completed reporting forms for submitting the information required for the facility chemical list, which consists of one of the following sets of forms:

(A) the most current version of the Texas Tier Two Cover Sheet form and one or more copies of the most current version of the Texas Tier Two Chemical Description Sheet form; or

(B) the most current version of the Texas Tier Two Cover Sheet form and one or more copies of the most current version of the federal Tier Two Emergency and Hazardous Chemical Inventory form.

(22) [ (20) ] Workplace chemical list--A list of hazardous chemicals developed under Title 29 CFR, §1910.1200(e)(1)(i).

(c) Responsibility for implementation of program. The commissioner's [ director's ] responsibilities under the Act are carried out through the Texas Department of Health, Product Safety [ Toxic Substances Control ] Division, Hazard Communication Branch. Compliance documents and routine inquiries regarding this Act shall be addressed, until further notice by the commissioner [ director ], to: Texas Department of Health, Product Safety [ Toxic Substances Control ] Division, Hazard Communication Branch, 1100 West 49th Street, Austin, Texas 78756 , at toll free telephone number 1-800-452-2791 .

(d) Facility chemical list.

(1) A facility operator covered by this section shall compile and maintain a facility chemical list in the format of either a Texas Tier Two form or an electronic Tier Two file .

(2) Completed hard copy [ The completed ] Tier Two forms shall be typed or mechanically reproduced, subject to approval of the department. The Texas Tier Two Cover Sheet submitted as a part of the Tier Two form to the department shall bear an original signature of an authorized representative of the facility operator and the date on which the form was signed.

(3)-(9) (No change.)

(10) For purposes of electronic reporting, a facility operator covered by this section may submit to the department an electronic Tier Two file of the facility chemical list using software and a submission procedure which has been approved by [ EPA or ] the department. [ A Texas Tier Two Cover Sheet, which has been signed and dated by the authorized representative of the facility operator, shall be submitted to the department with the electronic file of the facility chemical list. ] A copy of the completed versions of the electronic Tier Two file and any other document required by the department [ of the facility chemical list and the Texas Tier Two Cover Sheet ] and the appropriate filing fee as provided under subsections (h)(2) and (3) of this section shall meet the requirements of this subsection and may be submitted to the department to comply with this subsection.

(11) A facility operator must contact the fire chief for approval to submit an electronic Tier Two file of the facility chemical list in lieu of the paper copy of any required Tier Two form. If approved by the fire chief, a facility operator may submit an electronic Tier Two file of the facility chemical list and shall be in compliance with paragraphs (5)(A), (7)(A), and (9)(A) of this subsection. A facility operator must contact the chair of the LEPC for approval to submit an electronic Tier Two file of the facility chemical list in lieu of the paper copy of any required Tier Two form. If approved by the LEPC chair, a facility operator may submit an electronic Tier Two file of the facility chemical list and shall be in compliance with paragraphs (5)(B), (7)(B), and (9)(B) of this subsection.

(12)-(16) (No change.)

(17) In providing appropriate facility identifiers, a facility operator shall provide under the Facility Identification sections of the Texas Tier Two form one of the following descriptions:

(A) (No change.)

[(B) through December 31, 2000, for a facility located in an area outside of a city's limits, the description must include a written description which provides one of the following:]

[(i) when a street address has been assigned for purposes of emergency services, the street address and the name of the nearest city;]

[(ii) if the facility is located at the intersection of two roads, the names of the roads at the intersection and the name of the nearest city; or]

[(iii) if neither clause (i) or (ii) of this subparagraph apply to the facility, the approximate straight line distance and direction of the facility from the nearest city and the name of the nearest city.]

(B) [ (C) ] effective January 1, 2003 [ 2001 ], for a facility located in an area outside of a city's limits, the description must include either a street address or the latitude and longitude for the facility. Latitude and longitude values shall be given in units of decimal degrees [ , minutes, and seconds and be provided ] to four decimal places [ 0.1 seconds ]. Latitude and longitude values shall be obtained using a Global Positioning System instrument which has been calibrated to either the North American Datum of 1983 or the World Geodesic System of 1984.

(e) (No change.)

(f) Complaints and investigations.

(1) The commissioner [ director ] or his designated representative shall investigate in a timely manner a complaint relating to an alleged violation of the Act. Such complaints do not have to be submitted to the department in writing and may be anonymous. An inspection based on a complaint is not limited to the specific allegations of the complaint. A facility operator who refuses to allow such an investigation shall be in violation of the Act.

(2) Complaints are not necessary to conduct an inspection under this section. The commissioner [ director ] or his designated representatives may enter a facility at reasonable times to conduct random compliance inspections. A facility operator who refuses to allow such an inspection shall be in violation of the Act.

(3) (No change.)

(4) Upon request from a representative of the commissioner [ director ], a facility operator shall make or allow photocopies of documents to be made and permit the representative to take photographs to verify the compliance status of the employer. Such requests may be made during a compliance inspection or in a written Notice of Violation issued by the department.

(g) Administrative penalties.

(1) Inspections may be conducted by the commissioner [ director ] or his designated representative to determine if persons are in violation of the Act or the rules adopted by the Board of Health to enforce the Act. Persons found to be in violation will be notified in writing of any alleged violations.

(2) (No change.)

(3) Penalties shall be due after an order is issued by the commissioner [ director ]. With the exception of a case where the written notice from the department documents that a violation involves failure to make a good faith effort to comply with the Act, an order may be issued on or after the 16th business day following the date that a written notification of violations is received by the facility operator, unless the department receives an acceptable written response which documents that each violation has been corrected, an informal conference has been requested, or that a formal hearing has been requested. If an informal conference is held, the facility operator must respond within 10 business days after the facility operator receives a summary letter following the informal conference. In a case where the written notice from the department documents that a violation involves failure to make a good faith effort to comply with the Act, an order may be issued at any time.

(4)-(11) (No change.)

(h) Fees.

(1)-(3) (No change.)

(4) Fees paid by mail must be paid by check or money order (cash payments are not acceptable) to the Texas Department of Health and must be addressed to: Texas Department of Health, Product Safety [ Toxic Substances Control ] Division, Hazard Communication Branch, 1100 West 49th Street, Austin, Texas 78756.

(5)-(6) (No change.)

§295.182.Public Employer Community Right-To-Know.

(a) (No change.)

(b) Definitions. The following words and terms, when used in this section, shall have the following meanings unless the context clearly indicates otherwise.

(1)-(2) (No change.)

(3) Commissioner of health--The director of the Texas Department of Health, as referenced in the Health and Safety Code, §506.004(6).

(4) [ (3) ] Current Tier Two threshold--A quantity which is assigned to a specific hazardous chemical or extremely hazardous substance in the most recent version of Title 40 CFR, Part 370, and which determines whether a specific hazardous chemical or extremely hazardous substance must be included on the Tier Two form.

(5) [ (4) ] Department--The Texas Department of Health.

[(5) Director--The commissioner of the department.]

(6) Electronic Tier Two file--An electronic data file that contains, at a minimum, all of the information required for submission of a hard copy Tier Two form, and which provides the required Tier Two information for each individual reportable chemical.

(7) [ (6) ] EPCRA or SARA, Title III--The federal Emergency Planning and Community Right-To-Know Act, also known as the Superfund Amendments and Reauthorization Act of 1986, Title III, 42 USC, Chapter 116 et seq., and regulations promulgated by the EPA in Title 40 CFR, Parts 355-370.

(8) [ (7) ] EHS or extremely hazardous substance--Any substance as defined in EPCRA, §302, or listed by the EPA in Title 40 CFR, Part 355, Appendices A and B.

(9) [ (8) ] Facility--All buildings, equipment, structures, and other stationary items that are located on a single site or on contiguous or adjacent sites and that are owned or operated by the same person or by any person who controls, is controlled by, or is under common control with that person, and that is operated by the state or a political subdivision of the state.

(10) Facility chemical list--A chemical inventory that provides information for all reportable hazardous chemicals and EHSs present at a reporting facility, and which is submitted to the department in the form of either a completed electronic Tier Two file or a completed hard copy Tier Two form.

(11) [ (9) ] Facility operator--The person who controls the day-to-day operations of the facility.

(12) [ (10) ] Fire chief--The elected or paid administrative head of the fire department having jurisdiction over a facility.

(13) [ (11) ] Headquarters facility--Either the facility itself when the facility is staffed more than 20 hours per week, or, for facilities which are staffed less than 20 hours per week, the headquarters facility is an office which is staffed full time by the facility operator and which serves as the central office for staff who are responsible for overseeing the operations of the facility.

(14) [ (12) ] Latitude and longitude--A mapping coordinate system, designated in units of decimal degrees, [ minutes, and seconds, ] which serves as a facility location description on the Tier Two form in lieu of a street address.

(15) [ (13) ] LEPC-- The [ the ] Local Emergency Planning Committee, a group of individuals representing a designated emergency planning district and whose membership on the committee has been approved by the Texas State Emergency Response Commission as meeting the requirements of EPCRA, §301.

(16) [ (14) ] Research laboratory--A laboratory that engages in only research or quality control operations. Chemical specialty product manufacturing laboratories, full scale pilot plant operation laboratories that produces products for sale, and service laboratories are not research laboratories.

(17) [ (15) ] Standard Industrial Classification (SIC) Code--The four digit number which describes a facility's primary activity, which is determined by its principal product or group of products produced. For the purposes of the Act, the SIC Code is the one that is assigned to a facility by the Texas Workforce Commission. If a facility does not have a [ an ] SIC Code assigned by the Texas Workforce Commission, then the department must be consulted for assistance in determining the correct code.

(18) [ (16) ] Submission or required submission--The facility chemical list information which is submitted to the department in the form of either a completed hard copy Tier Two form or an electronic Tier Two file for a single facility to comply with subsection (d) of this section. When facility chemical list information for multiple facilities is submitted to the department on one Tier Two form for purposes of paperwork reduction, as allowed by subsection (d)(15) of this section , or as one electronic Tier Two file , then the Tier Two form or electronic file shall be counted by the department as multiple required submissions under subsections (h)(2) and (3) of this section.

(19) [ (17) ] Technically qualified individual--An individual with a professional education and background working in the research or medical fields, such as a physician, a registered nurse, or an individual holding a college bachelor's degree in science.

(20) [ (18) ] Texas Tier Two Cover Sheet form--A form developed by the department to collect general information about each reporting facility which is submitting a facility chemical list.

(21) [ (19) ] Tier Two form--A document that provides information for all reportable hazardous chemicals and EHSs present at a reporting facility. An "annual Tier Two form" provides the information for all hazardous chemicals and EHSs present at a facility at any time during the previous calendar year in quantities that met or exceeded the current Tier Two thresholds. An "initial Tier Two form" is one that provides information for hazardous chemicals or EHSs that meet or exceed the current Tier Two thresholds, but which were not reported on a previously submitted annual Tier Two form. An "updated Tier Two form" is one that provides significant new information concerning an aspect of one or more hazardous chemicals or EHSs which were previously reported on either the annual or first time Tier Two forms submitted by a facility. A "modified Tier Two form" provides information for all hazardous chemicals and EHSs that are present at a facility at a threshold of 500 pounds; this type of report may be prepared in response to a request from a citizen for information, in lieu of the workplace chemical list. The Tier Two form is a set of completed reporting forms for submitting the information required for the facility chemical list, which consists of one of the following sets of forms:

(A) the most current version of the Texas Tier Two Cover Sheet form and one or more copies of the most current version of the Texas Tier Two Chemical Description Sheet form; or

(B) the most current version of the Texas Tier Two Cover Sheet form and one or more copies of the most current version of the federal Tier Two Emergency and Hazardous Chemical Inventory form.

(22) [ (20) ] Workplace chemical list--A list of hazardous chemicals developed under the Texas Hazard Communication Act, §502.005(a).

(c) Responsibility for implementation of program. The commissioner's [ director's ] responsibilities under the Act are carried out through the Texas Department of Health, Product Safety [ Toxic Substances Control ] Division, Hazard Communication Branch. Compliance documents and routine inquiries regarding this Act shall be addressed, until further notice by the commissioner [ director ], to: Texas Department of Health, Product Safety [ Toxic Substances Control ] Division, Hazard Communication Branch, 1100 West 49th Street, Austin, Texas 78756 , at toll free telephone number 1-800-452-2791 .

(d) Facility chemical list.

(1) A facility operator covered by this section shall compile and maintain a facility chemical list in the format of either a Texas Tier Two form or an electronic Tier Two file .

(2) Completed hard copy [ The completed ] Tier Two forms shall be typed or mechanically reproduced, subject to approval of the department. The Texas Tier Two Cover Sheet submitted as a part of the Tier Two form to the department shall bear an original signature of an authorized representative of the facility operator and the date on which the form was signed.

(3)-(9) (No change.)

(10) For purposes of electronic reporting, a facility operator covered by this section may submit to the department an electronic Tier Two file of the facility chemical list using software and a submission procedure which has been approved by [ EPA or ] the department. [ A Texas Tier Two Cover Sheet, which has been signed and dated by the authorized representative of the facility operator, shall be submitted to the department with the electronic file of the facility chemical list. ] A copy of the completed versions of the electronic Tier Two file and any other document required by the department [ of the facility chemical list and the Texas Tier Two Cover Sheet ] and the appropriate filing fee as provided under subsections (h)(2) and (3) of this section shall meet the requirements of this subsection and may be submitted to the department to comply with this subsection.

(11) A facility operator must contact the fire chief for approval to submit an electronic Tier Two file of the facility chemical list in lieu of the paper copy of any required Tier Two form. If approved by the fire chief, a facility operator may submit an electronic Tier Two file of the facility chemical list and shall be in compliance with paragraphs (5)(A), (7)(A), and (9)(A) of this subsection. A facility operator must contact the chair of the LEPC for approval to submit an electronic Tier Two file of the facility chemical list in lieu of the paper copy of any required Tier Two form. If approved by the LEPC chair, a facility operator may submit an electronic Tier Two file of the facility chemical list and shall be in compliance with paragraphs (5)(B), (7)(B), and (9)(B) of this subsection.

(12)-(16) (No change.)

(17) In providing appropriate facility identifiers, a facility operator shall provide under the Facility Identification sections of the Texas Tier Two form one of the following descriptions:

(A) (No change.)

[(B) through December 31, 2000, for a facility located in an area outside of a city's limits, the description must include a written description which provides one of the following:]

[(i) when a street address has been assigned for purposes of emergency services, the street address and the name of the nearest city;]

[(ii) if the facility is located at the intersection of two roads, the names of the roads at the intersection and the name of the nearest city; or]

[(iii) if neither clause (i) or (ii) of this subparagraph apply to the facility, the approximate straight line distance and direction of the facility from the nearest city and the name of the nearest city.]

(B) [ (C) ] effective January 1, 2003 [ 2001 ], for a facility located in an area outside of a city's limits, the description must include either a street address or the latitude and longitude for the facility. Latitude and longitude values shall be given in units of decimal degrees [ , minutes, and seconds and be provided ] to four decimal places [ 0.1 seconds ]. Latitude and longitude values shall be obtained using a Global Positioning System instrument which has been calibrated to either the North American Datum of 1983 or the World Geodesic System of 1984.

(e) (No change.)

(f) Complaints and investigations.

(1) The commissioner [ director ] or his designated representative shall investigate in a timely manner a complaint relating to an alleged violation of the Act. Such complaints do not have to be submitted to the department in writing and may be anonymous. An inspection based on a complaint is not limited to the specific allegations of the complaint. A facility operator who refuses to allow such an investigation shall be in violation of the Act.

(2) Complaints are not necessary to conduct an inspection under this section. The commissioner [ director ] or his designated representatives may enter a facility at reasonable times to conduct random compliance inspections. A facility operator who refuses to allow such an inspection shall be in violation of the Act.

(3) (No change.)

(4) Upon request from a representative of the commissioner [ director ], a facility operator shall make or allow photocopies of documents to be made and permit the representative to take photographs to verify the compliance status of the employer. Such requests may be made during a compliance inspection or in a written Notice of Violation issued by the department.

(g) Administrative penalties.

(1) Inspections may be conducted by the commissioner [ director ] or his designated representative to determine if persons are in violation of the Act or the rules adopted by the Board of Health to enforce the Act. Persons found to be in violation will be notified in writing of any alleged violations.

(2) (No change.)

(3) Penalties shall be due after an order is issued by the commissioner [ director ]. An order may be issued on or after the 16th business day following the date that a written notification of violations is received by the facility operator, unless the department receives an acceptable written response which documents that each violation has been corrected, an informal conference has been requested, or that a formal hearing has been requested. If an informal conference is held, the facility operator must respond within 10 business days after the facility operator receives a summary letter following the informal conference.

(4)-(8) (No change.)

(h) Fees.

(1)-(3) (No change.)

(4) Fees paid by mail must be paid by check or money order (cash payments are not acceptable) to the Texas Department of Health and must be addressed to: Texas Department of Health, Product Safety [ Toxic Substances Control ] Division, Hazard Communication Branch, 1100 West 49th Street, Austin, Texas 78756.

(5)-(6) (No change.)

§295.183.Nonmanufacturing Facilities Community Right-To-Know.

(a) (No change.)

(b) Definitions. The following words and terms, when used in this section, shall have the following meanings unless the context clearly indicates otherwise.

(1)-(2) (No change.)

(3) Commissioner of health--The director of the Texas Department of Health, as referenced in the Health and Safety Code, §507.004(6).

(4) [ (3) ] Current Tier Two threshold--A quantity which is assigned to a specific hazardous chemical or extremely hazardous substance in the most recent version of Title 40 CFR, Part 370, and which determines whether a specific hazardous chemical or extremely hazardous substance must be included on the Tier Two form.

(5) [ (4) ] Department--The Texas Department of Health.

[(5) Director--The commissioner of the department.]

(6) Electronic Tier Two file--An electronic data file that contains, at a minimum, all of the information required for submission of a hard copy Tier Two form, and which provides the required Tier Two information for each individual reportable chemical.

(7) [ (6) ] EPCRA or SARA, Title III--The federal Emergency Planning and Community Right-To-Know Act, also known as the Superfund Amendments and Reauthorization Act of 1986, Title III, 42 USC, Chapter 116 et seq., and regulations promulgated by the EPA in Title 40 CFR, Parts 355-370.

(8) [ (7) ] EHS or extremely hazardous substance--Any substance as defined in EPCRA, §302, or listed by the EPA in Title 40 CFR, Part 355, Appendices A and B.

(9) [ (8) ] Facility--All buildings, equipment, structures, and other stationary items that are located on a single site or on contiguous or adjacent sites and that are owned or operated by the same person or by any person who controls, is controlled by, or is under common control with that person. The term does not include a facility subject to Chapter 505 or 506.

(10) Facility chemical list--A chemical inventory that provides information for all reportable hazardous chemicals and EHSs present at a reporting facility, and which is submitted to the department in the form of either a completed electronic Tier Two file or a completed hard copy Tier Two form.

(11) [ (9) ] Facility operator--The person who controls the day-to-day operations of the facility.

(12) [ (10) ] Fire chief--The elected or paid administrative head of the fire department having jurisdiction over a facility .

(13) [ (11) ] Hazardous chemical category--A group or class of hazardous chemicals with similar uses or production methods in a specified industrial process or processes which are specifically approved by the EPA to be reportable as a hazardous chemical. An example of such an EPA-approved industrial process is oil and gas exploration and production in Standard Industrial Classification Code 13 facilities.

(14) [ (12) ] Headquarters facility--Either the facility itself when the facility is staffed more than 20 hours per week, or, for facilities which are staffed less than 20 hours per week, the headquarters facility is an office which is staffed full time by the facility operator and which serves as the central office for staff who are responsible for overseeing the operations of the facility.

(15) [ (13) ] Latitude and longitude--A mapping coordinate system, designated in units of decimal degrees, [ minutes, and seconds, ] which serves as a facility location description on the Tier Two form in lieu of a street address.

(16) [ (14) ] LEPC-- The [ the ] Local Emergency Planning Committee, a group of individuals representing a designated emergency planning district and whose membership on the committee has been approved by the Texas State Emergency Response Commission as meeting the requirements of EPCRA, §301.

(17) [ (15) ] Research laboratory--A laboratory that engages in only research or quality control operations. Chemical specialty product manufacturing laboratories, full scale pilot plant operation laboratories that produces products for sale, and service laboratories are not research laboratories.

(18) [ (16) ] Standard Industrial Classification (SIC) Code--The four digit number which describes a facility's primary activity, which is determined by its principal product or group of products [ being distributed or sold at the wholesale or retail level or the principal service being provided ] produced . For the purposes of the Act, the SIC Code is the one that is assigned to a facility by the Texas Workforce Commission. If a facility does not have a [ an ] SIC Code assigned by the Texas Workforce Commission, then the department must be consulted for assistance in determining the correct code.

(19) [ (17) ] Submission or required submission--The facility chemical list information which is submitted to the department in the form of either a completed hard copy Tier Two form or an electronic Tier Two file for a single facility to comply with subsection (d) of this section. When facility chemical list information for multiple facilities is submitted to the department on one Tier Two form for purposes of paperwork reduction, as allowed by subsection (d)(15) of this section , or as one electronic Tier Two file , then the Tier Two form or electronic file shall be counted by the department as multiple required submissions under subsections (g)(2) and (3) of this section.

(20) [ (18) ] Technically qualified individual--An individual with a professional education and background working in the research or medical fields, such as a physician, a registered nurse, or an individual holding a college bachelor's degree in science.

(21) [ (19) ] Texas Tier Two Cover Sheet form--A form developed by the department to collect general information about each reporting facility which is submitting a facility chemical list.

(22) [ (20) ] Tier Two form--A document that provides information for all reportable hazardous chemicals and EHSs present at a reporting facility. An "annual Tier Two form" provides the information for all hazardous chemicals and EHSs present at a facility at any time during the previous calendar year in quantities that met or exceeded the current Tier Two thresholds. An "initial Tier Two form" is one that provides information for [ a facility which has ] hazardous chemicals or EHSs that meet or exceed the current Tier Two thresholds, but which were not reported on a previously submitted annual Tier Two form. An "updated Tier Two form" is one that provides significant new information concerning an aspect of one or more hazardous chemicals or EHSs which were previously reported on either the annual or first time Tier Two forms submitted by a facility. The Tier Two form is a set of completed reporting forms for submitting the information required for the facility chemical list, which consists of one of the following sets of forms:

(A) the most current version of the Texas Tier Two Cover Sheet form and one or more copies of the most current version of the Texas Tier Two Chemical Description Sheet form; or

(B) the most current version of the Texas Tier Two Cover Sheet form and one or more copies of the most current version of the federal Tier Two Emergency and Hazardous Chemical Inventory form.

(c) Responsibility for implementation of program. The commissioner's [ director's ] responsibilities under the Act are carried out through the Texas Department of Health, Product Safety [ Toxic Substances Control ] Division, Hazard Communication Branch. Compliance documents and routine inquiries regarding this Act shall be addressed, until further notice by the commissioner [ director ], to: Texas Department of Health, Product Safety [ Toxic Substances Control ] Division, Hazard Communication Branch, 1100 West 49th Street, Austin, Texas 78756 , at toll free telephone number 1-800-452-2791 .

(d) Facility chemical list.

(1) A facility operator covered by this section shall compile and maintain a facility chemical list using the most current version of either a [ the ] Texas Tier Two form or an electronic Tier Two file . For purposes of reporting hazardous chemicals at oil and gas exploration and production (SIC Code 13) facilities, the API Generic Tier Two Inventory Form may be substituted for the federal Tier Two Emergency and Hazardous Chemical Inventory Form. If the director of the EPA approves a different generic Tier Two Inventory form, developed by another industry or group of industries, the commissioner [ director ] of the department may authorize specified industries to substitute that form for the federal Tier Two Emergency and Hazardous Chemical Inventory Form.

(2) Completed [ The completed ] hard copy Tier Two forms shall be typed or mechanically reproduced, subject to approval of the department. The Texas Tier Two Cover Sheet submitted as a part of the Tier Two form to the department shall bear an original signature of an authorized representative of the facility operator and the date on which the form was signed.

(3)-(9) (No change.)

(10) For purposes of electronic reporting, a facility operator covered by this section may submit to the department an electronic Tier Two file of the facility chemical list using software and a submission procedure which has been approved by [ EPA or ] the department. [ A Texas Tier Two Cover Sheet, which has been signed and dated by the authorized representative of the facility operator, shall be submitted to the department with the electronic file of the facility chemical list. ] A copy of the completed versions of the electronic Tier Two file and any other document required by the department [ of the facility chemical list and the Texas Tier Two Cover Sheet ] and the appropriate filing fee as provided under subsections (g)(2) and (3) of this section shall meet the requirements of this subsection and may be submitted to the department to comply with this subsection.

(11) A facility operator must contact the fire chief for approval to submit an electronic Tier Two file of the facility chemical list in lieu of the paper copy of any required Tier Two form. If approved by the fire chief, a facility operator may submit an electronic Tier Two file of the facility chemical list and shall be in compliance with paragraphs (5)(A), (7)(A), and (9)(A) of this subsection. A facility operator must contact the chair of the LEPC for approval to submit an electronic Tier Two file of the facility chemical list in lieu of the paper copy of any required Tier Two form. If approved by the LEPC chair, a facility operator may submit an electronic Tier Two file of the facility chemical list and shall be in compliance with paragraphs (5)(B), (7)(B), and (9)(B) of this subsection.

(12)-(16) (No change.)

(17) In providing appropriate facility identifiers, a facility operator shall provide under the Facility Identification sections of the Texas Tier Two form one of the following descriptions:

(A) (No change.)

[(B) through December 31, 2000, for a facility located in an area outside of a city's limits, the description must include a written description which provides one of the following:]

[(i) when a street address has been assigned for purposes of emergency services, the street address and the name of the nearest city;]

[(ii) if the facility is located at the intersection of two roads, the names of the roads at the intersection and the name of the nearest city; or]

[(iii) if neither clause (i) or (ii) of this subparagraph apply to the facility:]

[(I) the approximate straight line distance and direction of the facility from the nearest city and the name of the nearest city;]

[(II) the latitude and longitude for the facility; or]

[(III) for SIC Code 13 facilities, the plat information, as provided to the Texas Railroad Commission for the facility.]

(B) [ (C) ] effective January 1, 2003 [ 2001 ], for a facility located in an area outside of a city's limits, the description must include either a street address or the latitude and longitude for the facility. Latitude and longitude values shall be given in units of decimal degrees [ , minutes, and seconds and be provided ] to four decimal places [ 0.1 seconds ]. Latitude and longitude values shall be obtained using a Global Positioning System instrument which has been calibrated to either the North American Datum of 1983 or the World Geodesic System of 1984.

(e) Complaints and investigations.

(1) The commissioner [ director ] or his designated representative shall investigate in a timely manner a complaint relating to an alleged violation of the Act. Such complaints do not have to be submitted to the department in writing and may be anonymous. An inspection based on a complaint is not limited to the specific allegations of the complaint. A facility operator who refuses to allow such an investigation shall be in violation of the Act.

(2) Complaints are not necessary to conduct an inspection under this section. The commissioner [ director ] or his designated representatives may enter a facility at reasonable times to conduct random compliance inspections. A facility operator who refuses to allow such an inspection shall be in violation of the Act.

(3) (No change.)

(4) Upon request from a representative of the commissioner [ director ], a facility operator shall make or allow photocopies of documents to be made and permit the representative to take photographs to verify the compliance status of the employer. Such requests may be made during a compliance inspection or in a written Notice of Violation issued by the department.

(f) Administrative penalties.

(1) Inspections may be conducted by the commissioner [ director ] or his designated representative to determine if persons are in violation of the Act or the rules adopted by the Board of Health to enforce the Act. Persons found to be in violation will be notified in writing of any alleged violations.

(2) (No change.)

(3) Penalties shall be due after an order is issued by the commissioner [ director ]. With the exception of a case where the written notice from the department documents that a violation involves failure to make a good faith effort to comply with the Act, an [ An ] order may be issued on or after the 16th business day following the date that a written notification of violations is received by the facility operator, unless the department receives an acceptable written response which documents that each violation has been corrected, an informal conference has been requested, or that a formal hearing has been requested. If an informal conference is held, the facility operator must respond within 10 business days after the facility operator receives a summary letter following the informal conference. In a case where the written notice from the department documents that a violation involves failure to make a good faith effort to comply with the Act, an order may be issued at any time.

(4)-(8) (No change.)

(g) Fees.

(1)-(3) (No change.)

(4) Fees paid by mail must be paid by check or money order (cash payments are not acceptable) to the Texas Department of Health and must be addressed to: Texas Department of Health, Product Safety [ Toxic Substances Control ] Division, Hazard Communication Branch, 1100 West 49th Street, Austin, Texas 78756.

(5)-(6) (No change.)

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

Filed with the Office of the Secretary of State on May 9, 2003.

TRD-200302894

Susan K. Steeg

General Counsel

Texas Department of Health

Earliest possible date of adoption: June 22, 2003

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


Part 2. TEXAS DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION

Chapter 411. STATE AUTHORITY RESPONSIBILITIES

Subchapter N. STANDARDS FOR SERVICES TO INDIVIDUALS WITH CO-OCCURRING PSYCHIATRIC AND SUBSTANCE USE DISORDERS (COPSD)

The Texas Department of Mental Health and Mental Retardation (TDMHMR) proposes new §§411.651-411.662 of Chapter 411, Subchapter N, concerning standards for services to individuals with co-occurring psychiatric and substance use disorders (COPSD).

The proposed new rules seek to improve outcomes for individuals with co-occurring psychiatric and substance use disorders by defining first, minimum competencies for staff serving members of the priority population who have serious impairment from co-occurring psychiatric and substance use disorders; and second, minimum standards for assessing and providing services to this population. Additionally, the proposed rules define access standards for individuals with co-occurring psychiatric and substance use disorders who meet the priority population definitions. These standards are intended to clarify the current performance contract requirement that members of the priority population not be restricted from services due to substance use disorders.

Cindy Brown, chief financial officer, has determined that for each year of the first five years the proposed rules are in effect, enforcing or administering the rules does not have implications relating to cost or revenue of the state or local governments because the standards required by the new subchapter will be met through the reallocation of existing resources.

A.J. Ernst, Ph.D., liaison between TDMHMR and the Texas Commission on Alcohol and Drug Abuse, has determined that for each year of the first five years the proposed new rules are in effect, the public benefit expected is the provision of appropriate services to individuals with co-occurring psychiatric and substance use disorders. It is anticipated that there will be no additional economic cost to persons required to comply with the proposed rules because they do not impose requirements on such persons that are more difficult or more expensive to meet than existing standards.

It is anticipated that the proposed new rules will not affect a local economy because the rules do not contain requirements related to employment or a local economy.

It is anticipated that the proposed new rules will not have an adverse economic effect on small businesses or microbusinesses because the rules do not impose requirements on small businesses or microbusinesses that are more difficult or more expensive to meet than existing standards.

Written comments on the proposal may be sent to Linda Logan, director, Policy Development, Texas Department of Mental Health and Mental Retardation, P.O. Box 12668, Austin, Texas 78711-2668, within 30 days of publication.

1. GENERAL PROVISIONS

25 TAC §§411.651 - 411.656

These new rules are proposed under the Texas Health and Safety Code, §532.015, which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority; §533.047 (Managed Care Organizations: Medicaid Program), §534.052 (Rules and Standards), and §534.058 (Standards of Care).

These proposed rules affect the Texas Health and Safety Code, §532.015; §533.047 (Managed Care Organizations: Medicaid Program), §534.052 (Rules and Standards), and §534.058 (Standards of Care).

§411.651.Purpose.

The purpose of this subchapter is to enhance existing mental health services provided by the entities defined in §411.653 of this title (relating to Definitions) by establishing standards to ensure the effective and coordinated provision of services to individuals who require specialized support or treatment due to co-occurring psychiatric and substance use disorders (COPSD).

§411.652.Application.

(a) The provisions of this subchapter apply to entities defined in §411.653 of this title (relating to Definitions).

(b) The provisions of this subchapter are in addition to requirements contained in other TDMHMR rules. This subchapter does not supercede other TDMHMR rules that may also apply to the provision of services to individuals as defined in §411.653 of this title (relating to Definitions).

§411.653.Definitions.

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

(1) Access--An individual's ability to obtain the services needed to achieve the outcomes as described in §411.659 of this title (relating to Quality Management).

(2) Adolescent--A person who is 13 through 17 years of age.

(3) Adult--A person who is 18 years of age or older.

(4) Child--A person who is 0 through 12 years of age.

(5) Contract--A legally enforceable written agreement for the purchase of services.

(6) Co-occurring psychiatric and substance use disorders (COPSD)--The co-occurring diagnoses of mental illness and substance use disorders.

(7) Diagnostic and Statistical Manual of Mental Disorders (DSM)--The most recent edition of the American Psychiatric Association's official classification of mental disorders.

(8) Entity or entities--The terms used to refer to the following:

(A) local mental health authorities (LMHAs);

(B) Medicaid managed care organizations (MMCOs);

(C) state mental health facilities (SMHF); and

(D) Medicaid providers who are required to comply with Chapter 419, Subchapter L of this title, governing Medicaid Rehabilitative Services, or Chapter 412, Subchapter J of this title, governing Service Coordination.

(9) Family member--Anyone an individual identifies as being involved in the individual's life (e.g., the individual's parent, spouse, child, sibling, significant other, or friend).

(10) Individual--

(A) For an LMHA--An adult with COPSD, adolescent with COPSD, or child with COPSD seeking or receiving services from or through the LMHA or its provider.

(B) For an MMCO--An enrolled adult with COPSD, adolescent with COPSD, or child with COPSD seeking or receiving services from or through the MMCO or its provider.

(C) For an SMHF--An adult with COPSD, adolescent with COPSD, or child with COPSD seeking or receiving services from or through the SMHF or its provider.

(D) For a provider of rehabilitative services or a provider of service coordination reimbursed by Medicaid--An adult with COPSD, adolescent with COPSD, or child with COPSD seeking or receiving rehabilitative services or service coordination reimbursed by Medicaid.

(11) Integrated assessment--An assessment of an individual to gather both substance use and psychiatric information.

(12) Legally authorized representative (LAR)--A person authorized by law to act on behalf of an individual with regard to a matter (e.g., a parent, guardian, or managing conservator of a child or adolescent, a guardian of an adult, or a personal representative of a deceased individual).

(13) Local mental health authority (LMHA)--A governmental entity to which the Texas MHMR Board delegates its authority and responsibility for any, all, or portions of planning, policy development, coordination, resource development and allocation, and oversight of the delivery of mental health services in a local service area.

(14) Medicaid managed care organization (MMCO)--An entity that has a current Texas Department of Insurance certificate of authority to operate as a health maintenance organization (HMO) under Article 20A of the Texas Insurance Code or as an approved nonprofit health corporation under Article 21.52F of the Texas Insurance Code and that provides mental health services to Medicaid recipients.

(15) Psychiatric disorder--

(A) In an adult, a severe and persistent mental illness such as schizophrenia, major depression, bipolar disorder, or other severely disabling mental disorder; or

(B) In a child or adolescent, a diagnosis of mental illness in one who exhibits serious emotional, behavioral, or mental disorders and who: has a serious functional impairment; is at risk of disruption of a preferred living or child care environment due to psychiatric symptoms; or is enrolled in a school system's special education program because of a serious emotional disturbance.

(16) Readiness to change--An individual's emotional and cognitive awareness of the need to change, coupled with a commitment to change.

(17) Services--Services provided to treat a psychiatric or substance use disorder.

(18) Staff--Full- or part-time employees, contractors, and students of an entity.

(19) Substance use disorder--The use of one or more drugs, including alcohol, which significantly and negatively impacts one or more major areas of life functioning and which meets criteria described in the current Diagnostic and Statistical Manual of Mental Disorders for substance abuse or substance dependence.

(20) Support services--Services delivered to an individual, legally authorized representative (LAR) or family member(s) to assist the individual in functioning in the living, learning, working, and socializing environments.

(21) Treatment plan--A written document developed by the provider, in consultation with the individual (and LAR on the individual's behalf), that is based on assessments of the individual and which addresses the individual's strengths, needs, goals, and preferences regarding service delivery as referenced in §412.315 (relating to Assessment and Treatment Planning) of Chapter 412, Subchapter G of this title, governing Mental Health Community Services Standards.

§411.654.Services to Individuals.

(a) The services provided to an individual with COPSD must:

(1) address both psychiatric and substance use disorders;

(2) be provided within established practice guidelines for this population; and;

(3) facilitate individuals or LARs in accessing available services they need and choose, including self-help groups.

(b) The services provided to an individual with COPSD must be provided:

(1) by staff who are competent in the areas identified in §411.658 of this title (relating to Specialty Competencies of Staff Providing Services to Individuals with COPSD);

(2) in an individual or small group setting;

(3) in an age, gender, and culturally appropriate manner; and

(4) in accordance with the individual's treatment plan.

§411.655.Responsibility for Compliance.

(a) Entities must comply with this subchapter.

(b) LMHAs, MMCOs, and SMHFs must require providers, by contract, to comply with §411.654 of this title (relating to Services to Individuals), §411.657 of this title (relating to Access to Services), §411.658 of this title (relating to Specialty Competencies of Staff Providing Services to Individuals with COPSD), and §411.660 of this title (relating to Screening, Assessment, and Treatment Planning).

(c) Entities must monitor staff who provide services to an individual with COPSD and contract providers for compliance with the applicable provisions of Divisions 2 and 3.

(d) MMCOs must comply and must require staff to comply with Chapter 404, Subchapter E of this title, governing Rights of Persons Receiving Mental Health Services.

§411.656.TDMHMR Central Office Responsibilities.

(a) TDMHMR Central Office must make available training resources for the competencies identified in §411.658 of this title (relating to Specialty Competencies of Staff Providing Services to Individuals with COPSD).

(b) TDMHMR Central Office must require LMHAs and SMHFs to develop quality management systems that ensure an appropriate integrated assessment for each individual and the appropriate delivery of services.

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

Filed with the Office of the Secretary of State on May 12, 2003.

TRD-200302969

Rudy Arredondo, Ed.D

Chairman, Texas MHMR Board

Texas Department of Mental Health and Mental Retardation

Earliest possible date of adoption: June 22, 2003

For further information, please call: (512) 206-5283


2. ORGANIZATIONAL STANDARDS

25 TAC §§411.657 - 411.659

These new rules are proposed under the Texas Health and Safety Code, §532.015, which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority; §533.047 (Managed Care Organizations: Medicaid Program), §534.052 (Rules and Standards), and §534.058 (Standards of Care).

These proposed rules affect the Texas Health and Safety Code, §532.015; §533.047 (Managed Care Organizations: Medicaid Program), §534.052 (Rules and Standards), and §534.058 (Standards of Care).

§411.657.Access to Services.

(a) In determining an individual's initial and ongoing eligibility for any service, an entity may not exclude an individual based on the following factors:

(1) the individual's past or present mental illness or substance use diagnosis or services;

(2) medications prescribed to the individual in the past or present;

(3) the presumption of the individual's inability to benefit from treatment;

(4) the specific substance used by the individual;

(5) the individual's continued substance use; or

(6) the individual's level of success in prior treatment episodes.

(b) Entities must ensure that an individual's refusal of a particular service does not preclude the individual from accessing other needed mental health or substance abuse services.

(c) The LMHAs, MMCOs, and SMHFs must ensure that individuals have access to staff who meet specialty competencies described in §411.658 of this title (relating to Specialty Competencies of Staff Providing Services to Individuals with COPSD).

(d) Entities must establish and implement procedures to ensure the continuity of screening, assessment, and treatment services provided to individuals.

§411.658.Specialty Competencies of Staff Providing Services to Individuals with COPSD.

(a) When providing services to children and adolescents, all competencies listed in this section must be tailored to address the needs of these individuals.

(b) Entities must ensure that services to individuals are provided by staff within their scope of practice who have the following minimum knowledge, technical, and interpersonal competencies prior to providing services:

(1) Knowledge competencies:

(A) knowledge of the fact that psychiatric and substance use disorders are potentially recurrent relapsing disorders, and that although abstinence is the goal, relapses can be opportunities for learning and growth;

(B) knowledge of the impact of substance use disorders on developmental, social, and physical growth and development of children and adolescents;

(C) knowledge of interpersonal and family dynamics and their impact on individuals;

(D) knowledge of the current Diagnostic and Statistical Manual of Mental Disorders diagnostic criteria for psychiatric disorders and substance use disorders and the relationship between psychiatric disorders and substance use disorders;

(E) knowledge regarding the increased risks of self-harm, suicide, and violence in individuals;

(F) knowledge of the elements of an integrated treatment plan and community support plan for individuals;

(G) basic knowledge of pharmacology as it relates to individuals;

(H) basic understanding of the neurophysiology of addiction;

(I) knowledge of the phases of recovery for individuals;

(J) knowledge of the relationship between COPSD and Axis III disorders; and

(K) basic knowledge of self-help in recovery.

(2) Technical competencies:

(A) ability to perform age-appropriate assessments of individuals; and

(B) ability to formulate an individualized treatment plan and community support plan for individuals.

(3) Interpersonal competencies:

(A) ability to tailor interventions to the process of recovery for individuals;

(B) ability to tailor interventions with readiness to change; and

(C) ability to support individuals who choose to participate in 12-step recovery programs.

(c) These competencies may be evidenced by compliance with current licensure requirements of the governing or supervisory boards for the respective disciplines involved in serving individuals with COPSD or by documentation regarding the attainment of the competencies described in subsection (b) of this section.

§411.659.Quality Management.

(a) The LMHAs and MMCOs must develop and implement a plan for quality management of services to individuals with COPSD as required in §412.313 (relating to Quality Management) of Chapter 412, Subchapter G of this title, governing Mental Health Community Services Standards.

(b) The SMHFs must develop and implement a plan for quality management of services to individuals. The plan must be incorporated into the Improving Organizational Performance System (IOPS) and must identify clinical measures. The plan must describe the following:

(1) activities for measuring, assessing, and improving processes for delivering services in accordance with this subchapter; and

(2) methods for evaluating and improving outcomes for individuals receiving services.

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

Filed with the Office of the Secretary of State on May 12, 2003.

TRD-200302968

Rudy Arredondo, Ed.D

Chairman, Texas MHMR Board

Texas Department of Mental Health and Mental Retardation

Earliest possible date of adoption: June 22, 2003

For further information, please call: (512) 206-5283


3. STANDARDS OF CARE

25 TAC §411.660

The new rule is proposed under the Texas Health and Safety Code, §532.015, which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority; §533.047 (Managed Care Organizations: Medicaid Program), §534.052 (Rules and Standards), and §534.058 (Standards of Care).

The proposed rule affects the Texas Health and Safety Code, §532.015; §533.047 (Managed Care Organizations: Medicaid Program), §534.052 (Rules and Standards), and §534.058 (Standards of Care).

§411.660.Screening, Assessment, and Treatment Planning.

(a) Screening and assessment. When a screening determines an assessment is necessary, an integrated assessment must be conducted to consider relevant past and current medical, psychiatric, and substance use information, including:

(1) information from the individual (and LAR on the individual's behalf) regarding the individual's strengths, needs, natural supports, responsiveness to previous treatment, as well as preferences for and objections to specific treatments;

(2) the needs and desire of the individual for family member involvement in treatment and services if the individual is an adult without an LAR; and

(3) recommendations and conclusions regarding treatment needs and eligibility for services for individuals.

(b) Treatment plan development.

(1) The individual (and LAR on the individual's behalf, if applicable) must be involved in all aspects of planning the individual's treatment. If the individual has requested the involvement of a family member, then the provider must involve the family member in all aspects of planning the individual's treatment.

(2) The treatment plan must identify services to be provided and must include measurable outcomes that address COPSD.

(3) The treatment plan must identify the LAR's or family members' need for education and support services related to the individual's mental illness and substance abuse and a method to facilitate the LAR's or family members' receipt of the needed education and support services.

(4) The individual, LAR, and, if requested, family member, must be given a copy of the treatment plan.

(c) Treatment plan review. Each individual's treatment plan must be reviewed as clinically indicated, but at least once every 90 calendar days, and the review must be documented.

(d) Progress notes. The medical record notes must contain a description of the individual's progress towards goals identified in the treatment plan, as well as other clinically significant activities or events.

(e) Episode of care summary. Upon discharge or transfer of an individual from one entity to another, the individual's medical record must identify the services provided according to this subchapter and the items referenced in §412.315 (relating to Assessment and Treatment Planning) of Chapter 412, Subchapter G of this title, governing Mental Health Community Services Standards.

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

Filed with the Office of the Secretary of State on May 12, 2003.

TRD-200302967

Rudy Arredondo, Ed.D

Chairman, Texas MHMR Board

Texas Department of Mental Health and Mental Retardation

Earliest possible date of adoption: June 22, 2003

For further information, please call: (512) 206-5283


4. REFERENCES AND DISTRIBUTION

25 TAC §411.661, §411.662

These new rules are proposed under the Texas Health and Safety Code, §532.015, which provides the Texas Mental Health and Mental Retardation Board with broad rulemaking authority; §533.047 (Managed Care Organizations: Medicaid Program), §534.052 (Rules and Standards), and §534.058 (Standards of Care).

These proposed rules affect the Texas Health and Safety Code, §532.015; §533.047 (Managed Care Organizations: Medicaid Program), §534.052 (Rules and Standards), and §534.058 (Standards of Care).

§411.661.References.

The following rules and laws are referenced in this subchapter:

(1) Chapter 404, Subchapter E of this title, governing Rights of Persons Receiving Mental Health Services;

(2) Chapter 412, Subchapter G of this title, governing Mental Health Community Services Standards;

(3) Chapter 412, Subchapter J of this title, governing Service Coordination;

(4) Chapter 419, Subchapter L of this title, governing Medicaid Rehabilitative Services; and

(5) Texas Code of Insurance, Articles 20A and 21.52F;

§411.662.Distribution.

(a) This subchapter will be distributed to:

(1) members of the Texas Mental Health and Mental Retardation Board;

(2) executive, management, and program staff of TDMHMR Central Office;

(3) executive staff of the Texas Commission on Alcohol and Drug Abuse;

(4) CEOs of all LMHAs, MMCOs, and SMHFs; and

(5) advocacy organizations.

(b) The CEO of each LMHA, MMCO, and SMHF shall disseminate the information contained in this subchapter to appropriate staff members and contract providers.

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

Filed with the Office of the Secretary of State on May 12, 2003.

TRD-200302966

Rudy Arredondo, Ed.D

Chairman, Texas MHMR Board

Texas Department of Mental Health and Mental Retardation

Earliest possible date of adoption: June 22, 2003

For further information, please call: (512) 206-5283


Part 8. INTERAGENCY COUNCIL ON EARLY CHILDHOOD INTERVENTION

Chapter 621. EARLY CHILDHOOD INTERVENTION

Subchapter I. SYSTEM OF FEES

25 TAC §§621.180 - 621.182

The Interagency Council on Early Childhood Intervention (Council) proposes new Subchapter I to Chapter 621, §§621.180-621.182, regarding the imposition of a system of payments, including a sliding fee scale, for ECI services.

As of the date of publication, legislation is pending in the 78th Texas Legislature that would allow the Council to implement a system of payments by families, including a schedule of sliding fees, for certain services provided by ECI programs. The Council's 2004-2005 legislative appropriation pending in the 78th Legislature is conditioned on receipt of additional revenues to be generated through collection of fees for services.

The Council is proposing rules to be able to begin implementing a system of fees on September 1, 2003, if authorizing legislation is enacted into law by the 78th legislature. If authorizing legislation is not passed by the 78th Legislature, the proposed rules will be withdrawn.

Mary Elder, Executive Director, Interagency Council on Early Childhood Intervention, has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be the continued availability of services for all eligible children due to revenue collected from families financially able to contribute to the cost of their services.

Mary Elder has determined that for the first five years the proposed sections will be in effect the economic cost to persons required to comply with the rules will be as follows:

1) Families subject to the fees: The Council estimates that 26% of families currently enrolled in ECI programs are above 200% of Federal Poverty Level and receiving services subject to the system of fees. Based on the proposed sliding fee scale, the economic cost to enrolled families for each of the first five years the rules are in effect will be an estimated cost share in the range of $10 - $300 a month per family.

2) Programs responsible for collecting fees and administering fee system: Programs will be required to develop and operate a system to verify family income, assess fees, and collect payment from families. Operating costs will be offset by reductions in other administrative costs and revenue collected. Therefore, there is no economic cost to programs subject to the proposed rules.

Mary Elder has determined that for the first five years the proposed sections will be in effect the fiscal implications for state or local government as a result of enforcing or administering the sections will be as follows:

The state is projected to realize cost savings for each of the first five years the rules are in effect as follows: Fiscal years: 2004 $1,775,520; 2005 $1,918,800; 2006 $2,078,060; 2007 $2,250,539; 2008 $2,437,334.

No fiscal implications for local government.

There will be no costs to micro-businessess or small businesses as a result of enforcing the new sections.

Public comment on the proposed rules may be submitted in writing, verbally, or via e-mail to: Cindy Martin, Deputy Executive Director, Interagency Council on Early Childhood Intervention 4900 North Lamar Boulevard Austin, Texas 78751, phone (512) 424-6754, facsimile (512) 424-6749, electronic mail cindy.martin@eci.state.tx.us.

Comments must be submitted within 45 days of publication in the Texas Register . For further information or questions concerning this proposal, please contact Cindy Martin at (512) 424-6752 or Cindy.Martin@eci.state.tx.us

Public hearings on the rules will be held at dates and locations to be announced through the Texas Register .

The new sections are proposed under § 1432 (4) of the Individuals with Disabilities Education Act, 20 U.S.C. 1000 et seq, which allows a state early intervention program to establish a system of family fees if the state's law provides for such a system. Texas Human Resources Code, §73.0051(b) authorizes the council to adopt rules to provide for compliance with the terms and provisions of applicable federal and state laws in the administration of programs and the delivery of services to eligible children, and legislation pending in the 78th Legislature will, if enacted, expressly grant the Council the authority to adopt rules for the establishment of a fee system.

No other statute, article, or code is affected by the new sections.

§621.180.Purpose.

To establish a system of payments for early intervention services, including a schedule of sliding fees, as authorized by the Individuals with Disabilities Education Act (IDEA), and to establish procedures to be used to determine a family's cost share for early intervention services based on their ability to pay.

§621.181.Definitions.

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

(1) Adjusted Gross Income--Salary and wages, minus allowable expenses, used to determine a family's ability to pay and cost share.

(2) Allowable Expenses--Expenses that can be deducted from gross income to calculate adjusted gross income for purpose of determining a family's ability to pay and cost share.

(3) Ability to Pay--The determination that the family is financially able to contribute to the cost of services provided by ECI based on the family's placement on the sliding fee scale. Placement on the scale at $0 indicates an inability to pay.

(4) Extenuating Circumstances--Events and expenses that have occurred in a family's life that may prevent the family from paying their family cost share.

(5) Family Cost Share or Family Fee--The maximum amount of money the family must pay per month based on the cost of services on the IFSP and the family's ability to pay, considering the family's income, family size, and certain medical and dental expenses and debts.

(6) Gross Income--A family's earned income from wages or salary used to calculate the adjusted gross income and family cost share.

(7) Income verification--The process of reviewing family documentation of income, either by review at intake or by annual random sampling.

(8) Rate--The hourly or unit rate established by the Council used to calculate the cost of services on an IFSP.

(9) Sliding Fee Scale--The scale of graduated family fees or cost share amounts adopted by the Council for use in determining the family's ability to pay and the maximum cost share a family receiving ECI services may be responsible for based on their income and family size.

§621.182.Administration of Family Cost Share System.

(a) By November 1, 2003, each ECI program must implement a family cost share system of sliding fees in compliance with this subchapter and Council policies.

(b) Prior to any collection of income information or imposition of fees, parents must be fully informed of their right to receive certain ECI services at no cost, their right to refuse any services they do not wish to receive, and the method the program will use to verify family income.

(c) Determination of family income. The program will calculate the family's ability to pay based on the family's gross income and adjusted gross income in the following manner:

(1) During the intake process and at each annual review the program will collect information from the family regarding the family's gross income as defined in §621.181 of this title (relating to Definitions.)

(2) The program may require verification of income from every family or may rely on family self-report of income. For programs that rely on family self-report, verification must be conducted on 10% of enrolled families, selected randomly, by May 1 of each year to assure the program's use of self-report is accurate and effective.

(A) Sources of verification may include:

(i) paycheck stubs from the two most recent consecutive pay periods;

(ii) the most recently filed Internal Revenue Service income tax form;

(iii) written verification from an employer;

(iv) other written documentation as determined by the program.

(B) Families with proof of enrollment in Medicaid, CHIP or TANF are automatically assumed to have an inability to pay and need not provide further documentation or verification of income.

(3) Once the annual gross family income has been determined, the annual adjusted gross family income must be calculated by deducting allowable expenses from the gross income.

(A) Allowable expenses include:

(i) medical or dental expenses (excluding cosmetic or elective procedures) for the past 12 months which were not reimbursed by insurance;

(ii) outstanding medical or dental debt (excluding debt from cosmetic or elective procedures) when the family is making payments toward the debt;

(iii) medical and /or dental expenses and debt may include those accrued by all dependents of the parents.

(B) Verification of expenses can be made by one of the following methods:

(i) medical bills, statements or receipts;

(ii) IRS claims for medical expense deductions;

(iii) doctor or hospital letters verifying balances and payments for the time period in question.

(4) Copies of income or expense documents do not need to be kept by the program if an ECI employee reviews the documents and provides a written statement of verification.

(5) A family who refuses to provide documentation of their income and/or expenses will be assessed as able to pay the highest cost share reflected on the sliding fee scale, or the actual cost of services, whichever is less, until such time as they submit income and/or expense documentation for verification.

(6) With the exception of children described in subsection (d)(5) of this section, adjusted gross income is calculated based on income and expenses for all parents or legal guardians living in the same home with the child. In situations where there is shared physical custody or shared legal or financial responsibility for a child, only the adjusted gross income of the parent with the authority to sign the IFSP will be considered unless conditions warrant otherwise. The parent who signs the IFSP will be the party billed for the family cost share.

(d) Placement on sliding fee scale - ability to pay.

(1) Using the attached chart, the program will determine the family's monthly cost share after calculating adjusted gross income and family size. The family's monthly cost share will be either the amount reflected on the chart that corresponds with the family's income and family size, or the actual monthly cost of services provided as per the IFSP, whichever is less. The family cost share is the maximum monthly amount for which the family is responsible, regardless of the actual cost of services.

Figure: 25 TAC §621.182(d)(1)

(2) Families with proof of enrollment in Medicaid, CHIP or TANF cash benefits are automatically assigned a cost share of $0. Families receiving CHIP may still be responsible for applicable CHIP co-pays.

(3) Families with an adjusted income at or below 200% FPL who are eligible for Medicaid or CHIP benefits but choose to not apply for or enroll in those programs will be charged the lowest cost share on the sliding fee scale.

(4) Families with an adjusted income at or below 200% of the Federal Poverty Level will have a family cost share of $0 if all available third party resources deny coverage or reimbursement for ECI services, or the family is not eligible for any other financial assistance.

(5) When a child is living in foster care, the family will automatically be assigned a cost share of $0. If insurance or Medicaid is billed for services and a co-payment is required, the parent(s) may be responsible for the co-payment.

(e) Review of family cost share

(1) The family's ability to pay and cost share amount will be reviewed at the annual IFSP review. Any changes to the cost share will be done at that time.

(2) ECI programs must develop local policies that provide for a review of a family's adjusted income or cost share amount by the program director or other administrator at times other than the annual review if the family has experienced a change in financial status or has experienced extenuating circumstances which significantly affect their ability to pay. Examples of such circumstances could include: loss of job, catastrophic loss such as a fire or flood, unexpected repair to family car, extraordinary child care or child support payments, or similar circumstances which the family feels are not adequately considered in the assessment of adjusted income. Families may be asked to submit verification of such circumstances. Refusal to do so may result in denial of the review.

(3) If adjustments to the cost share are found to be warranted, the revised cost share will take effect at the beginning of the next month. The IFSP should be amended at the next regularly scheduled IFSP meeting. Past payments will not be adjusted.

(4) Families must be informed of the program's process for reviewing their family cost share amount before they are asked to sign the IFSP.

(f) Assign costs to the IFSP services.

(1) The Council will establish a rate for each early intervention service for which fees can be charged.

(2) Programs will use the state-established rates to assign a cost to each planned service on a child's IFSP.

(A) Those services that must be provided at no cost to the family are:

(i) Child find;

(ii) Evaluation and Assessment;

(iii) Development of the Individualized Family Service Plan;

(iv) All services to children with Auditory or Visual disabilities provided as a part of a free and appropriate public education under Part B as per state statute;

(v) Service coordination; and,

(vi) Administrative and coordination activities related to the implementation of procedural safeguards and other components of the statewide system of early intervention services.

(B) A fee can be charged for all other services provided as part of an IFSP.

(3) The program must inform the family of the total cost of services planned on the IFSP based on the rates established by the Council, regardless of the family's method or amount of cost sharing for ECI services.

(4) The program will compare the total cost of the billable services on the IFSP to the maximum cost share allowed for that family on the sliding fee scale. The monthly family cost share will be the lesser of the two amounts.

(5) The family's cost share will be reflected on the IFSP. Services subject to cost sharing will not be delivered until the family cost share has been determined and the family has agreed to their responsibility (if any) under the plan. Family signature on the IFSP, including information on the family cost share and agreements to bill insurance, signifies agreement with the amount the family will pay for services.

(6) Service coordination and other services not subject to fees may begin immediately after the IFSP is developed.

(g) Billing for services.

(1) Third party payers.

(A) With parent consent, programs may bill private insurance or other third-party payers for services delivered according to the IFSP. Services not reimbursed by the third party payer become the responsibility of the family, up to cost share maximum.

(B) Families who have been determined to have an ability to pay are responsible for applicable insurance co-payments for each billable event up to the cap established as their family cost share. Once the family has paid insurance co-payments for ECI services equal to their family cost share, the remainder of the services billed to insurance will not require co-payments because ECI has determined the level of hardship for the family with the sliding fee scale.

(2) Billing families for services.

(A) Programs will bill the family for the cost share or the actual cost of the services provided, whichever is less.

(B) In no case may a program bill a family for more than the actual cost of services provided.

(3) Payment and Non-Payment of Fees.

(A) Families will have 30 days from the billing date to pay their family cost share or to have the claim submitted for payment from private insurance. All unpaid balances after 90 days will be considered delinquent.

(B) Families must be notified that failure to maintain their cost share account in good standing may after 90 days result in the suspension of IFSP services that are subject to fees, and that if services are later reinstated, the program cannot guarantee that they will be reinstated on the same schedule or at the same amount as prior to termination.

(C) Service Coordination and other services exempt from fees must be continued during any period of suspension.

(D) A notation should be made on the IFSP that services subject to fees have been suspended due to non-payment.

(E) Services that have been suspended will be reinstated when the family's account returns to good standing. The IFSP should reflect the date of the reinstatement.

(F) An ECI program may require families to pay in advance if the services have been terminated for non-payment in the previous six months.

(G) Programs must have a process for collecting delinquent fees. Documentation must be kept of reasonable attempts to collect on unpaid balances. Reasonable attempts include multiple attempts at written notification, phone notification or emails to communicate with the family.

(H) Programs must develop local policy allowing the ECI Program Director or other Administrator to modify a family's payment plan or cost share based on extenuating circumstances as defined in the local policy.

(4) Missed service appointments.

(A) No adjustment in the family cost share will be made when the family is not available for a scheduled appointment for any ECI service unless the family notifies the ECI program in advance. If family cancellations result in the inability of the program to reasonably schedule a make up session in the same month, no adjustments will be made in the cost share for that month.

(B) If the ECI program fails to deliver planned services due to changes or conflicts created by the program, every effort will be made to reschedule. An adjustment to the family cost share will be made if the actual cost of the services delivered that month falls below the amount of the Family Cost Share. It is the program's responsibility to make an adjustment of the family's cost share for that month.

(h) Program fiscal and record-keeping policies.

(1) All revenues generated by family cost sharing will be collected by the program.

(A) Revenue received from the Family Cost Share may only be used for early intervention services within the ECI program and may not supplant any other local fund sources.

(B) Fees collected must be reported to the ECI state office as program income.

(2) Financial records related to verification of income and payment history will not be a part of the child's educational record and must be kept separately from the child's service files.

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

Filed with the Office of the Secretary of State on May 12, 2003.

TRD-200302965

Mary Elder

Executive Director

Interagency Council on Early Childhood Intervention

Proposed date of adoption: July 7, 2003

For further information, please call: (512) 424-6750