TITLE 1.ADMINISTRATION

Part 3. OFFICE OF THE ATTORNEY GENERAL

Chapter 55. CHILD SUPPORT ENFORCEMENT

Subchapter G. AUTHORIZED COSTS AND FEES IN IV-D CASES

The Office of the Attorney General adopts amended §55.151 with only grammatical and typographical changes to the proposed text as published in the August 15, 2003, issue of the Texas Register (28 TexReg 6445).

Texas Family Code §231.202 provides the State's Title IV-D agency with the authority to establish procedures by rule for the payment of authorized fees.

The amended section clarifies the effective date as well as adds new language for payment by the Office of the Attorney General for service of process in Title IV-D cases to a clerk of the court, the sheriff, or a constable.

No comments were received regarding the adoption of this amendment.

The amended section is adopted under the authority of Texas Family Code §231.202.

The amendment affects Chapter 110 of the Texas Family Code and Sections 51.317, 51.318(b)(2), and 51.319(2), Texas Government Code.

§55.151.Authorized Costs and Fees in IV-D Cases.

(a) The clerk of the court may charge the Office of the Attorney General the following costs and fees in IV-D cases:

(1) filing fees and fees for issuance and service of process as provided by Chapter 110 of the Texas Family Code and by Section 51.317, 51.318(b)(2), and 51.319(2), Texas Government Code;

(2) fees for transfer as provided by Chapter 110 of the Texas Family Code;

(3) fees for the issuance and delivery of orders and writs of income withholding in the amounts provided by Chapter 110 of the Texas Family Code; and

(4) a reasonable fee not to exceed $15 for filing an original administrative writ of withholding with an effective date on or after September 1, 2001. A fee cannot be charged for duplicate copies of an administrative writ of withholding.

(b) The clerk of the court, the sheriff, or a constable may charge the Office of the Attorney General the fee that sheriffs and constables are authorized to charge for serving process under Section 118.131, Local Government Code for each item of process to each individual on whom service is required, including service by certified or registered mail, to be paid to the sheriff, constable, or clerk who charged the fee to the Office of the Attorney General whenever service of process is required.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 30, 2004.

TRD-200400621

Nancy S. Fuller

Assistant Attorney General

Office of the Attorney General

Effective date: February 19, 2004

Proposal publication date: August 15, 2003

For information regarding this publication, you may contact A.G. Younger, Agency Liaison, at (512) 463-2110.

Chapter 61. CRIME VICTIMS' COMPENSATION

Subchapter E. PECUNIARY LOSS

1 TAC §61.402, §61.404

The Office of the Attorney General (OAG) adopts the amendment of §61.402 (Subchapter E, Pecuniary Loss; Loss of Earnings) and §61.404 (Subchapter E, Pecuniary Loss; Travel Expenses) without changes to the proposed text as published in the November 21, 2003, issue of the Texas Register (28 TexReg 10365), relating to the OAG's administration of the Crime Victims' Compensation Fund. The amendments are necessary to bring the rules into compliance with Texas Code of Criminal Procedure (Tex. Code Crim. Proc.) Articles 56.32(a)(2)(d)(ii), 56.32(a)(9)(I), 56.32(a)(9)(B)(iii), and 56.32(a)(9)(D), relating to pecuniary losses from lost earnings and travel expenses.

According to the Texas Constitution, Article I, Section 31, the compensation to victims of crime (CVC) fund, may be expended as provided by law only for delivering or funding victim related compensation, services, or assistance.

Tex. Code Crim. Proc. Art. 56.33 provides that the OAG shall adopt rules governing the administration of the CVC fund, including rules relating to the method of filing claims, proof of entitlement to compensation, and review of health care services.

The amendments accurately implement, interpret, and prescribe the law and minimum standards of practices, procedures, and policies of the OAG relating to the administration of the CVC fund as required by Texas Government Code, Chapter 2001.

No comments were received regarding these amendments.

The amendments are adopted under Texas Code of Criminal Procedure, Article 56.33, which authorizes the OAG to amend rules pertaining to its administration.

The amendments affect Texas Code of Criminal Procedure, Chapter 56.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 28, 2004.

TRD-200400552

Nancy S. Fuller

Assistant Attorney General

Office of the Attorney General

Effective date: February 17, 2004

Proposal publication date: November 21, 2003

For information regarding this publication, you may contact A.G. Younger, Agency Liaison, at (512) 463-2110.

Part 4. OFFICE OF THE SECRETARY OF STATE

Chapter 81. ELECTIONS

Subchapter I. IMPLEMENTATION OF THE HELP AMERICA VOTE ACT OF 2002

1 TAC §§81.172, 81.174, 81.175

The Office of the Secretary of State adopts new §§81.172, 81.174, and 81.175, concerning procedures for provisional balloting as required under Section 302 of the federal Help America Vote Act of 2002 ("HAVA"), with changes to the proposed text as published in the November 7, 2003, issue of the Texas Register (28 TexReg 9613).

The new sections are necessary to provide counties and other political subdivisions of the state with uniform procedures for carrying out the provisional voting requirement of Section 302 of HAVA.

Written comments were filed by Cliff Borofsky, Bexar County Elections Administrator; Paula Patterson, Smith County Elections Administrator; Don Alexander, Denton County Elections Administrator; Sue Daniel, Potter County Clerk; and the Texas Appleseed Organization.

Comment: The statement that the rule would have no fiscal implications was incorrect. Additional forms will be required and the Early Voting Ballot Board will require additional time to meet and complete the provisional ballot procedure. Response: The Secretary of State agrees that the rule will have a limited fiscal impact on the local entities holding an election due to the additional time the Early Voting Ballot Board will have to be paid to complete review and counting of provisional ballots. Further, county Voter Registrars will also require additional time and perhaps personnel for their review of Provisional Voters' registration status. No change was made to the rules in response to the comment; the provisional voting procedure is required in federal elections by HAVA and local elections by House Bill 1549, 78th Legislature, Regular Session.

Comment: §81.172(a)(1). Specifying that "4 or 5" ballots be set aside and stamped for provisional voting creates a danger that an insufficient number of ballots might be available for provisional voting. Response: Though we note that an Election Judge would always be able to create more provisional ballots as necessary, the section has been amended to require that a sufficient number of ballots be set aside, which leaves the number to the judge's discretion. Corresponding changes were made to the other rules.

Comment: The rule should be amended to require the ballot to be stamped with the party in a primary election. Response: During the primary elections, a Voter's participation in a particular party's primary elections will be reflected on the signature roster (or combination form) separated by both political parties. No change was made to the rule.

Comment: §81.172(b). The failure to present identification when required should be added the to list of situations in which a person is eligible to vote a provisional ballot. Response: The rule was amended to add the failure to present identification as a provisional ballot situation. Corresponding changes were made to the other rules.

Comment: The county and state should be required to compile the information on provisional ballot envelopes, including whether or not they were counted and for what reason into published reports as a resource for the voting public and community organizations engaged in voter registration. Response: The Secretary of State declines to amend the rule to require such reports at this time but may revisit the issue in the future.

Comment: The rules should be amended to allow a provisional ballot to be counted for statewide and federal offices if a Voter mistakenly votes in the wrong precinct. Response: This change would require legislative action and is beyond the scope of the rulemaking process.

Comment: §81.172 (b)(2). The words "At the qualifying table" should be removed from the start of the sentence, because it creates the impression that Voters will have a choice about voting on paper or DRE. This is not the case. Poll site conflicts which could be generated by having the ballots visible should be avoided. Response: The phrase has been deleted in each rule.

Section 81.172(b)(14) was amended to add the notice which the Voter will receive at the time of voting explaining in writing that the Voter should expect to receive a determination of whether the Voter's ballot was counted, the fact that the Provisional Ballot Affidavit Envelope will be used by the Voter Registrar to register the Voter or update the Voter's registration information, and when the Voter can expect to receive the notice. This procedure was accidentally omitted from the proposed rules. Corresponding changes have been made to the other rules.

Comment: §81.172(c)(3). A new subsection should be added to explicitly state that the Election Judge shall not allow a Voter to cast a provisional ballot if the Voter refuses to sign the required Provisional Ballot Affidavit Envelope. This is the only instance in which the judge may refuse to let a Voter have a provisional ballot. Without this, any person can walk in off the street with no ID and no signature on the Provisional Ballot Affidavit Envelope and vote. This must be codified. Response: The language has been added to each rule.

Comment: §81.172(c)(11). The rule should be amended to require the election judge to explicitly inform the voter that a ballot stamped provisional will not be counted if found outside the required envelope. Response: The rule has been changed. Corresponding changes were made to the other two rules.

Comment: §81.172(c)(12). The rule should be amended to require the Election Judge to inform the Provisional Voter that the provisional ballot envelope will also act as a voter registration application if it is determined that the Voter is not eligible to vote in the precinct. Response: The rule was not changed. The notice that the Voter will be given explaining the provisional vote procedure will contain this information.

Comment: §81.172(c)(13)(C). The authority holding the election should have the flexibility to require provisional ballots to be placed in a separate container from the ballot box for regularly voted ballots. Response: The rules have been amended to allow a separate container to be provided at the polling place. Corresponding changes were made to the other two rules.

Comment: §81.172(d)(1). The "to the extent practicable" language should be deleted and any specific early voting provisional voting procedures different from election day should be spelled out in the rule to avoid inconsistency. Response: The rule was not changed. This language is consistent with the Election Code.

Comment: §81.172(f)(1). The section currently states that the Voter Registrar "takes possession" of the provisional ballots. It should be amended to clarify whether the Voter Registrar has the responsibility to go to the General Custodian of election records and pick up the records or whether the General Custodian of election records is responsible for delivering the ballots to the Voter Registrar's office. Response: The section has been amended in each rule to clarify that the general duty lies with the General Custodian of election records to deliver the ballots to the Voter Registrar's office. However, if the Voter Registrar submits a request to take possession of the ballots on election night, the Voter Registrar must go the General Custodian of election record's office and pick up the provisional ballots. Corresponding changes were made to the other rules as well.

Comment: §81.172(f)(1). The section states that the General Custodian must take possession of the provisional ballots the day after election day. This language does not address weekend or holidays. For elections held on a Saturday, the next day will be a Sunday and both the Voter Registrar and General Custodian of election records offices will be closed. Response: Each rule was amended to refer to the "next regular business day" after election day. Corresponding changes were made to the other rules.

Comment: §81.172(g). The Voter Registrar's duty to check with the Department of Public Safety to try and verify whether a Voter attempted to register should be explicitly stated in the provisional ballot review process. Response: This requirement was added to each of the rules.

Comment: §81.172(g)(1). The process the Voter Registrar uses to review provisional ballots should be further defined, specifically the sources registrars should use in reviewing provisional Voters' eligibility. Response: The rule has been amended to require the registrar to examine records from the Department of Public Safety, volunteer deputy registrars, and other records to determine Provisional Voters' eligibility. Corresponding changes were made to the other two rules.

Comment: §81.172(g)(1)(B). The Voter Registrar should also be required to fill in the reason for cancellation along with the date and this information should be provided in the notice mailed to the Provisional Voter. Response: No change was made to the rule. The Voter will be informed that the reason her provisional ballot was not cast was due to cancellation. The notice form will have a statement suggesting that the Voter contact the Voter Registrar for more information.

Comment: §81.172(g)(3). The text should be amended to state that the Voter Registrar shall also use the provisional ballot envelope to correct the voter registration information for voters who were erroneously cancelled or listed in the wrong precinct. Response: The rule has been amended. Corresponding changes were made to the other rules.

Comment: §81.172(g)(4). The phrase "registration date" should be used rather than "effective date" to describe when a person, who registered by the provisional voting envelope, will be eligible to vote. Use of "effective date" implies that the Voter would be able to vote immediately. Response: Effective date is the term used in the Election Code; therefore no change has been made.

Comment: §81.172(g)(4). Language should be added to the counting rules stating that once the statewide Voter Registration database is operational, the vote of any Provisional Voter who is confirmed to be registered in the state of Texas will be counted for all applicable ballot provisions. Response: This change would require legislative action and is beyond the scope of the rulemaking process.

Comment: §81.172(g)(4)(M). Change language "ballot is counted" to "the ballot shall be counted." Response: This change was made and corresponding changes made to each rule.

Section 81.172(g)(8) was amended to require the Early Voting Ballot Board to distribute their records in accordance with Chapter 66 of the Code. Corresponding changes were made to the other rules.

New Section 81.172(b)(1)(G) adds a new category for voters eligible to vote a provisional ballot: voter who is not on the voter registration list but whose registered residence address is outside the political subdivision. Corresponding changes were made to the other rules.

New Section 81.172(e)(5) requires the general custodian of election records to give the Voter Registrar seals to reseal the ballot box after the review of provisional ballots is complete. The rule did not previously address this issue. Corresponding changes were made to the other rules.

New Section 81.172(e)(7) authorizes the Voter Registrar to take possession of provisional ballots prior to election day if the Early Voting Ballot Board has authority to meet prior to election day to process the early voting ballots. Corresponding changes were made to the other rules.

New Section 81.172(g)(10) requires the General Custodian of election records to prepare an amended unofficial return once the provisional ballot information is received from the ballot board. Corresponding changes were made to the other rules.

New Section 81.172(h) was added to define the early voting ballot board for purposes of the provisional voting procedures and authorizes subsets of the early voting ballot board to review and count provisional ballots. Corresponding language has been added to each rule.

Comment: §81.174(c)(13)(C). The language is inconsistent, implying that a separate container is needed for the provisional envelopes, when the Secretary of State had made it clear to election officials that a separate provisional ballot container would not be required. Response: The language has been amended to allow provisional ballots to be deposited in Ballot Box number 1, while authorizing a separate container to be used.

New Section 81.174(e)(8) authorizes the Voter Registrar to take delivery of provisional ballots from central counting station personnel prior to election day in counties with a population of 100,000 or more.

Comment: §81.175(e)(4). Polling place officials should not be allowed to zero out the precinct counter and re-run the ballots through the machine when a ballot stamped "provisional" is found among the counted ballots. Instead they should be required to bring the ballots to central count for re-processing. Response: This section, which applies only to precinct counter systems, has been amended to require the election officials to follow the irregularly counted ballots procedures already in the Code at §127.157.

The new sections are adopted under Section 31.010 of the Code, which requires the Secretary of State to adopt rules as necessary to implement HAVA.

§81.172.Provisional Voting Procedures: Paper Ballot.

(a) Polling Place Preparation

(1) The Election Judge shall set aside a sufficient number of regular ballots from the supply of official ballots and write or stamp "provisional" on the back of the ballot (referred to below as "provisional ballots").

(2) The Election Judge shall keep the provisional ballots separate from the regular ballots.

(b) Eligibility to vote provisional ballots.

(1) At all elections, the following individuals shall be eligible to cast a provisional ballot:

(A) A Voter who claims to be properly registered and eligible to vote at the election precinct, but whose name does not appear on the list of registered voters and whose registration cannot be determined by the Voter Registrar; or

(B) A Voter who is designated as a first time Voter on the list of registered voters, but who is unable to produce the required identification; or

(D) A Voter who votes during the polling hours that are extended by a state or federal court; or

(E) A Voter who is registered to vote but attempting to vote in a different precinct other than the one in which the Voter is registered.

(F) A Voter who is required to present identification but does not.

(G) A Voter who is on the list, but registered residence address is outside the political subdivision.

(2) A person voting by mail may not vote a provisional ballot.

(1) If a Voter is eligible to cast a provisional ballot, the Election Judge shall immediately inform the Voter of this right. The Election Judge shall also inform the Voter that their provisional ballot will not be counted if the Voter casts a provisional ballot at a precinct in which the Voter is not registered (regardless of whether the Voter is registered in another precinct but in the same political subdivision) or if there is an indication on the list of registered voters that the Voter has voted early in person or by mail.

(2) The Election Judge must request the Voter to present a valid form of identification to vote a provisional ballot. If the Voter has no identification, he may still be permitted to vote a provisional ballot, but his ballot will not be approved for counting and the Election Judge must notify the Voter of that fact. Acceptable forms of identification include:

(A) a driver's license or personal identification card issued to the person by the Department of Public Safety or a similar document issued to the person by an agency of another state, regardless of whether the license or card has expired;

(B) a form of identification containing the person's photograph that establishes the person's identity;

(C) a birth certificate or other document confirming birth that is admissible in a court of law and establishes the person's identity;

(D) United States citizenship papers issued to the person;

(E) a United States passport issued to the person;

(F) official mail addressed to the person by name from a governmental entity;

(G) a copy of a current utility bill, bank statement, government check, paycheck or other government document that shows the name and address of the Voter; or

(H) any other form of identification prescribed by the secretary of state.

(3) Prior to casting a provisional ballot, the Voter shall be required to sign a Provisional Ballot Affidavit Envelope. The Provisional Ballot Affidavit Envelope shall state that the Voter is a registered voter in the political subdivision and a resident on election day and that he is eligible to vote in the election. The Provisional Ballot Affidavit Envelope shall also require the information necessary to register the Voter, if he proves to be unregistered. A Voter who refuses to sign the Provisional Ballot Affidavit Envelope is not eligible to vote provisionally.

(4) The Election Judge shall make clear to the Voter that in order for the provisional ballot to be evaluated by the Early Voting Ballot Board, he must complete and sign the Provisional Ballot Affidavit Envelope.

(5) The Election Judge shall enter the Provisional Voter's name on the list of Provisional Voter's form.

(6) The Election Judge shall add the name of the Provisional Voter to the poll list and check the column "Provisional".

(7) The Provisional Voter signs the regular signature roster.

(8) The Election Judge shall check the reason under which the Voter voted provisionally on the provisional ballot envelope. The reasons include:

(A) Voter not on list of registered voters, Voter Registrar could not be reached;

(B) Voter not on list of registered voters and could not be verified by Voter Registrar;

(D) Voter not on list and no identification;

(E) Voter on list of persons who voted early by mail, Voter says he/she did not receive or return the ballot and refuses to cancel the ballot with the Early Voting Clerk; or

(F) First time Voter without any identification.

(9) The Election Judge shall then sign the provisional ballot envelope.

(10) The Election Judge shall direct the Voter to choose a ballot from a stack of pre-designated "provisional" ballots.

(11) The Election Judge shall inform the Voter that ballots stamped "provisional" will not be counted if placed in the ballot box without sealing it inside the corresponding envelope.

(12) The Election Judge shall inform the Voter that the Voter will receive notice in the mail as to whether or not their ballot was counted and shall immediately provide to the Voter a written notice which will inform the Voter of this fact in writing, along with information that explains that the Provisional Ballot Affidavit Envelope will be used by the Voter Registrar to register the Voter or update his registration, as applicable.

(13) After the provisional ballot has been voted, the Voter shall

(A) seal the provisional ballot in a plain white secrecy envelope,

(B) seal the secrecy envelope inside the provisional ballot envelope; and

(C) deposit the Provisional Ballot Affidavit Envelope in Ballot Box #1 or a separate container that meets the requirements of Section 51.034 of the Code or has been approved by the Secretary of State.

(d) Early Voting By Personal Appearance Provisional Ballot Procedures.

(1) To the extent practicable, the Early Voting Clerk or Deputy Early Voting Clerk shall follow election day provisional ballot procedures during the early voting period.

(2) The Provisional Voter's precinct number shall be added to an Early Voting List of Provisional Voters.

(3) When the Early Voting Ballot Board convenes, the early voting ballot board shall separate the provisional ballot envelopes from the regularly cast ballots and place them in a ballot box or transfer case for delivery to the Voter Registrar. The Voter Registrar shall sign the List of Early Voting Provisional Voters to verify receipt of the provisional ballot envelopes.

(4) The Voter Registrar shall review the Provisional Ballot Affidavit Envelopes as set out in subsection (e) of this section.

(e) Provisional Ballot Affidavit Envelope transfer procedures

(1) The presiding Election Judge shall enter the number of Provisional Ballot Affidavit Envelopes cast on the register of official ballots and on the List of Provisional Voters.

(2) The Election Judge shall separate the Provisional Ballot Affidavit Envelopes from regular ballots during the counting phase, and shall secure the regular counted ballots in Ballot Box Number 3 and secure the provisional ballots in Ballot Box Number 4.

(3) The List of Provisional Voters is placed in Envelope Number 2.

(4) On election night, the General Custodian shall open all Envelopes Number 2 and remove the List of Provisional Voters. From these lists, the General Custodian shall prepare a Summary of Provisional Ballots listing each precinct and the number of provisional ballots received by that precinct as indicated on the Register of Official Ballots. The information on the Summary of Provisional Ballots shall be available during election night.

(5) The General Custodian shall unlock Ballot Box Number 4 and remove the Provisional Ballot Affidavit Envelopes.

(6) The General Custodian shall also verify that the number of Provisional Voters on the List of Provisional Voters from each precinct matches the number of provisional ballots recorded on the ballot register from each precinct.

(7) The General Custodian shall sign the List of Provisional Voters evidencing the number of Provisional Voters per precinct and the number of Provisional Ballot Affidavit Envelopes to be forwarded to the Voter Registrar.

(8) Ballots stamped "provisional" but not contained in a provisional ballot envelope may not be counted and are not transferred to the Voter Registrar. The presiding Election Judge shall write the reason for not counting the ballot on the back of the ballot. These ballots shall be retained for the appropriate preservation period, and shall also be placed in Ballot Box No. 4.

(9) The General Custodian shall place the voted Provisional Ballot Affidavit Envelope from all the election day precincts into a ballot box or transfer case with the corresponding List of Provisional Voters for each precinct.

(10) The General Custodian shall give the Voter Registrar a copy of the Summary of Provisional Ballots at the same time the Provisional Ballot Affidavit Envelopes and List of Provisional Voters are delivered to the Voter Registrar.

(11) The General Custodian shall lock and seal each ballot box or transfer case that contains the Provisional Ballot Affidavit Envelopes prior to delivery to the Voter Registrar. The numbers on the seal shall be recorded on the Summary of Provisional Ballots.

(12) A Poll Watcher if available, may sign the Summary of Provisional Ballots.

(f) Transfer to Voter Registrar

(1) The General Custodian shall deliver the ballot box(es) or transfer case(s) containing the Provisional Ballot Affidavit Envelopes along with the Summary of Provisional Ballots and the List of Provisional Voters for each precinct to the Voter Registrar on the next business day after the election.

(2) If the Voter Registrar wishes to take possession of the ballot box(es) or transfer case(s) containing the Provisional Ballot Affidavit Envelope from the General Custodian of election records on election night, the Voter Registrar must inform the General Custodian of election records and post a Notice of Election Night Transfer no later than 24 hours before election day. If the Voter Registrar makes this determination, the Voter Registrar must go to the General Custodian's office and take possession on election night.

(3) Upon receipt of the ballot box(es) or transfer case(s) containing the Provisional Ballot Affidavit Envelopes and their keys, the Voter Registrar shall sign the Verification of Provisional Ballots and Serial Numbers to verify such receipt, that the box was in tact, and that the seal was not broken.

(4) The Voter Registrar shall break the seal and unlock the box.

(5) The General Custodian of election records shall supply the Voter Registrar with a sufficient number of seals to re-seal the ballot box(es) or transfer case(s) containing the Provisional Ballot Affidavit Envelopes once her review is completed.

(6) The Voter Registrar must keep the List of Provisional Voters together with the corresponding Provisional Ballot Affidavit Envelopes for that precinct. The Voter Registrar does not complete any information on this form.

(7) If the Early Voting Ballot Board meets prior to election day to prepare ballots for processing as authorized under Section 87.062 of the Code, the Voter Registrar may attend the meeting and take possession of early voting Provisional Ballot Affidavit Envelopes prior to election day. The Voter Registrar shall give the General Custodian of election records written notice of his or her intent to take early possession of the Provisional Ballot Affidavit Envelopes at least 24 hours prior to the scheduled meeting of the ballot board.

(g) Voter Registrar Review of Provisional Ballot Affidavit Envelopes

(1) No later than the third business day after election day, the Voter Registrar shall complete the review of the Provisional Ballot Affidavit Envelopes. As part of the review, the Voter Registrar shall review information from the following sources to attempt to determine the Provisional Voter's registration status: the Department of Public Safety, Volunteer Deputy Registrars, and other records that may establish the Voter's eligibility. The Voter Registrar must examine each Provisional Ballot Affidavit Envelope, determine the Voter's registration status, and indicate the status on the face of the Provisional Ballot Affidavit Envelope as one of the following:

(A) No record of voter registration application on file in this county;

(B) Registration cancelled on ________ (fill in date);

(D) Incomplete registration received, but additional information not returned;

(E) Voter rejected for registration due to ineligibility;

(F) Registered to vote, but erroneously listed in wrong precinct;

(G) Registered to vote in a different precinct within the county;

(H) Information on file indicating applicant completed a voter registration application, but it was never received in the Voter Registrar's office; and/or

(I) Voter erroneously removed from list of registered voters.

(2) The Voter Registrar shall sign and date his review of each Provisional Ballot Affidavit Envelope.

(3) The Voter Registrar shall copy the Provisional Ballot Affidavit Envelope of each Voter who was not registered to vote, who was registered but whose information contains updated voter registration information, or who was erroneously cancelled or listed in the wrong precinct.

(4) For purposes of voter registration, the copied Provisional Ballot Affidavit Envelope serves as an original voter registration application or change form; the effective date will be calculated as thirty days from the Election Date.

(5) The Voter Registrar shall keep the Provisional Ballot Affidavit Envelopes by election precinct during the review. The Voter Registrar shall replace the Provisional Ballot Affidavit Envelopes in the boxes in which the Provisional Ballots Affidavit Envelopes were originally received for transfer to the Early Voting Ballot Board, along with the List of Provisional Voters for each precinct. The copy of the Summary of Provisional Ballots is returned to the General Custodian. The box is relocked and resealed in the same manner in which it was received. The serial number of the seal shall be recorded on the Verification of Provisional Ballots and Serial Number form.

(6) The Voter Registrar shall sign the Verification of Provisional Ballots and Serial Numbers form verifying transfer, and the presiding judge of the Early Voting Ballot Board shall sign indicating receipt of the Provisional Ballot Affidavit Envelopes and that the key and ballot box(es) was properly sealed.

(7) Poll Watchers are not entitled to be present during the Voter Registrar's review.

(h) Early Voting Ballot Board defined The authority appointing the Early Voting Ballot Board may determine which members of the board will review and count the provisional ballots. The entire ballot board is not required to be present. A minimum of three members of the board is required to conduct the review.

(i) Review of Provisional Ballot Affidavit Envelopes by Early Voting Ballot Board; Rules for Counting

(1) The presiding judge of the Early Voting Ballot Board shall take receipt of the Provisional Ballot Affidavit Envelopes from the Voter Registrar at a time and place to be determined by the presiding judge.

(2) The presiding judge of the Early Voting Ballot Board may convene the board as soon as practicable after the Voter Registrar has completed the review of the provisional ballots. The judge must post a notice on the bulletin board used for posting notices of meetings of the governing body ordering the election no later than 24 hours before the board is scheduled to meet. The board may also convene while the Voter Registrar continues the review.

(3) The Early Voting Ballot Board must receive and review the Provisional Ballot Affidavit Envelopes.

(4) The Early Voting Ballot Board shall review both the Election Judge's and the Voter Registrar's notation on each Provisional Ballot Affidavit Envelope to determine whether or not the ballot should be counted as indicated below:

(A) If the Voter Registrar indicates that the Provisional Voter is registered to vote and was erroneously registered in the wrong election precinct, the ballot shall be counted.

(B) The ballot shall be counted if the Voter Registrar determines that the Provisional Voter is eligible and submitted a timely voter registration application, but was not timely received by the Voter Registrar.

(C) If the Election Judge indicated that the Voter did not provide a valid registration certificate or other form of identification, the ballot shall not be counted.

(D) If the Election Judge indicated that the reason for casting a provisional ballot was that the Voter appeared on the list of registered voters as having cast a ballot by mail and the Voter claimed that he never received the mail ballot and is not willing to cancel his or her mail ballot application with the main Early Voting Clerk, the provisional ballot shall not be counted.

(E) If the Voter Registrar indicates that there is no record of the Provisional Voter's registration application on file with the county, the provisional ballot shall not be counted.

(F) If the Voter Registrar indicates that the Provisional Voter's registration has been cancelled and provides the date, the ballot shall not be counted.

(G) If the Voter Registrar indicates that the Provisional Voter was registered less than 30 days before Election Day and therefore did not have effective registration for the precinct at which he attempted to vote, the ballot shall not be counted.

(H) If the Voter Registrar indicates that an incomplete application was received from the Provisional Voter but the required additional information was not returned, the ballot shall not be counted.

(I) If the Voter Registrar indicates that the Provisional Voter's registration application was rejected due to ineligibility, the ballot shall not be counted.

(J) If the Voter Registrar indicates that the Provisional Voter is registered to vote at a different precinct other than the one the Voter voted in, the ballot shall not be counted.

(K) If the board determines that the Provisional Voter was not registered and not entitled to vote at the election precinct where the ballot was cast, the ballot shall not be counted.

(L) The Voter Registrar has information in the office that the Voter did complete an application, and the Voter is otherwise qualified, the ballot shall be counted.

(M) If the Voter was erroneously removed from list and Voter is otherwise qualified to vote, the ballot shall be counted.

(5) The presiding judge shall indicate the disposition of each ballot on the appropriate space of the Provisional Ballot Affidavit Envelope.

(6) The presiding judge shall indicate the disposition of each Provisional Ballot Affidavit Envelope on the List of Provisional Voters for that precinct.

(8) The Provisional Ballot Affidavit Envelopes for accepted ballots shall be placed in an Envelope for Provisional Ballot Affidavit Envelopes marked "Accepted" and the Provisional Ballot Affidavit Envelopes and their Provisional Ballots for the rejected ballots shall be placed in an Envelope for Provisional Ballot Envelopes marked "Rejected".

(9) Once counted, the provisional ballots shall be re-locked and returned to the General Custodian of election records. The key shall be delivered to the General Custodian of the key. The records of the ballot board shall be distributed in accordance with Chapter 66 of the Code.

(10) The List of Provisional Voters for each precinct shall be delivered to the General Custodian in the Envelope for Accepted Provisional Ballot Affidavit Envelopes.

(11) The General Custodian of election records shall prepare an amended unofficial return once the General Custodian receives the documents contained in Envelope #2.

(12) The provisional ballots and Provisional Ballot Affidavit Envelopes shall be retained for the appropriate preservation period for the election.

(13) The Lists of Provisional Voters for each precinct shall be retained and used by the General Custodian of election records to provide information to Voters on whether the provisional ballot was counted or not.

(14) All Provisional Ballot Affidavit Envelopes and the List of Provisional Voters are public records.

(15) Rejected Provisional Ballot Affidavit Envelopes may not be opened except by court order.

(16) Poll Watchers are entitled to be present at the meeting of Early Voting Ballot Board pursuant to §33.054 of the Texas Election Code.

(j) Request for Return of Original Envelopes. Upon request of the Voter Registrar, the General Custodian shall deliver the original Provisional Ballot Affidavit Envelopes to the Voter Registrar after the preservation period.

(k) Notice to Provisional Voters. Not later than the 10th day after the local canvass, the presiding judge of the Early Voting Ballot Board shall deliver written notice regarding whether the provisional ballot was counted, and if the ballot was not counted, the reason the ballot was not counted. The presiding judge shall use the information provided on the Provisional Ballot Affidavit Envelope to obtain the proper mailing address for the Voter and the final resolution of the provisional ballot.

§81.174.Provisional Voting Procedures for Punch Card and Optical Scan Voting System Ballots Tabulated at a Central Counting Station.

(a) Polling Place Preparation

(2) The Election Judge shall keep the provisional ballots separate from the regular ballots.

(b) Eligibility to vote provisional ballot

(1) At all elections, the following individuals shall be eligible to cast a provisional ballot:

(B) A Voter who is designated as a first time Voter on the list of registered voters, but who is unable to produce the required identification; or

(D) A Voter who votes during the polling hours that are extended by a state or federal court; or

(E) A Voter who is registered to vote but attempting to vote in a different precinct other than the one in which the Voter is registered.

(F) A Voter who is required to present identification but does not.

(G) A Voter who is on the list, but registered residence address is outside the political subdivision.

(2) A person voting by mail may not vote a provisional ballot.

(1) If a Voter is eligible to cast a provisional ballot, the Election Judge shall immediately inform the Voter of this right. The Election Judge shall also inform the Voter that his or her provisional ballot will not be counted if the Voter casts a provisional ballot at a precinct in which the Voter is not registered (regardless of whether the Voter is registered in another precinct but in the same political subdivision) or if there is an indication on the list of registered Voters that the Voter has voted early in person or by mail.

(B) a form of identification containing the person's photograph that establishes the person's identity;

(C) a birth certificate or other document confirming birth that is admissible in a court of law and establishes the person's identity;

(D) United States citizenship papers issued to the person;

(E) a United States passport issued to the person;

(F) official mail addressed to the person by name from a governmental entity;

(G) a copy of a current utility bill, bank statement, government check, paycheck or other government document that shows the name and address of the Voter; or

(H) any other form of identification prescribed by the secretary of state.

(5) The Election Judge shall enter the Provisional Voter's name on the List of Provisional Voter's form.

(6) The Election Judge shall add the name of the Provisional Voter to the poll list and check the column "Provisional".

(7) The Provisional Voter signs the regular signature roster.

(8) The Election Judge shall check the reason under which the Voter voted provisionally on the provisional ballot envelope. The reasons include:

(A) Voter not on list of registered voters, Voter Registrar could not be reached;

(B) Voter not on list of registered voters and could not be verified by Voter Registrar;

(D) Voter not on list and no identification;

(E) Voter on list of persons who voted early by mail, Voter says he/she did not receive or return the ballot and refuses to cancel the ballot with the Early Voting Clerk; or

(F) First time Voter without any identification.

(9) The Election Judge shall then sign the provisional ballot envelope.

(10) The Election Judge shall direct the Voter to choose a ballot from a stack of pre-designated "provisional" ballots.

(11) The Election Judge shall inform the Voter that ballots stamped "provisional" will not be counted if placed in the ballot box without sealing it inside the corresponding envelope.

(13) After the provisional ballot has been voted, the Voter shall

(A) seal the provisional ballot in a plain white secrecy envelope,

(B) seal the secrecy envelope inside the provisional ballot envelope; and

(d) Early Voting By Personal Appearance Provisional Ballot Procedures.

(1) To the extent practicable, the Early Voting Clerk or Deputy Early Voting Clerk shall follow election day provisional ballot procedures during the early voting period.

(2) The Provisional Voter's precinct number shall be added to an Early Voting List of Provisional Voters.

(3) The central counting station manager shall direct the provisional ballot envelopes to be separated from the regularly cast ballots and placed in a ballot box or transfer case for delivery to the Voter Registrar. The Voter Registrar shall sign the List of Early Voting Provisional Voters to verify receipt of the provisional ballot envelopes.

(4) The Voter Registrar shall review the Provisional Ballot Affidavit Envelopes as set out in subsection (e) of this section.

(e) Provisional Ballot Affidavit Envelope transfer procedures.

(1) The presiding Election Judge shall enter the number of Provisional Ballot Affidavit Envelopes cast on the register of official ballots and on the List of Provisional Voters.

(2) The Election Judge shall place a copy of the List of Provisional Voters form in Envelope Number 2.

(3) The ballot box(es) shall be delivered to the central counting station after the polls close.

(4) Upon opening the ballot box(es) at the central counting station, counting station personnel shall separate the regularly-cast ballots from the Provisional Ballot Affidavit Envelopes.

(5) Ballots stamped "provisional" but not contained in a Provisional Ballot Affidavit Envelope may not be counted and are not transferred to the Voter Registrar. The presiding Election Judge shall write the reason for not counting the ballot on the back of the ballot. These ballots shall be retained for the appropriate preservation period, and shall be placed in Ballot Box No. 4.

(6) The central counting station personnel shall also verify that the number of Provisional Voters on the List of Provisional Voters from each precinct matches the number of Provisional Ballot Affidavit Envelopes recorded on the ballot register from each precinct. If there is no match, the central counting station personnel shall note this fact on both documents.

(7) The central counting station personnel shall place the voted Provisional Ballot Affidavit Envelopes from all of the election day precincts into a ballot box or transfer case with the corresponding List of Provisional Voters for each precinct.

(8) The central counting station personnel shall sign the List of Provisional Voters evidencing the number of Provisional Voters per precinct and the number of Provisional Ballot Affidavit Envelopes to be forwarded to the Voter Registrar.

(9) The central counting station personnel shall prepare a Summary of Provisional Ballots listing each precinct and the number of Provisional Ballot Affidavit Envelopes received from that precinct.

(10) The central counting station personnel (or General Custodian after election night) shall give the Voter Registrar a copy of the Summary of Provisional Ballots at the same time the Provisional Ballot Affidavit Envelopes are delivered to the Voter Registrar.

(11) The General Custodian shall lock and seal each ballot box or transfer case that contains Provisional Ballot Affidavit Envelopes prior to delivery to the Voter Registrar. The numbers on the seal shall be recorded on the Summary of Provisional Ballots.

(12) A Poll Watcher, if available, may sign the Summary of Provisional Ballots.

(f) Transfer to Voter Registrar.

(2) If the Voter Registrar wishes to take possession of the ballot box(es) or transfer case(s) containing the Provisional Ballot Affidavit Envelopes from the General Custodian of election records on election night, the Voter Registrar must inform the General Custodian of election records and post a Notice of Election Night Transfer no later than 24 hours before election day. If the Voter Registrar makes this determination, the Voter Registrar must go to the General Custodian's office and take possession on election night.

(4) The Voter Registrar shall break the seal and unlock the box.

(7) If the Early Voting Ballot Board meets prior to election day to prepare ballots for processing if authorized under Chapter 87, Subchapter B of the Code, the Voter Registrar may attend the meeting and take possession of early voting Provisional Ballot Affidavit Envelopes prior to election day. The Voter Registrar shall give the General Custodian of election records written notice of his or her intent to take early possession of the Provisional Ballot Affidavit Envelopes at least 24 hours prior to the scheduled meeting of the ballot board.

(8) If the central counting station personnel in a county with a population of 100,000 or more, take possession of the early voting ballots prior to election day in accordance with Section 87.0241 of the Code, the Voter Registrar may take possession of the Provisional Ballot Affidavit Envelopes prior to election day. The Voter Registrar shall give the General Custodian of election records written notice of his or her intent to take early possession of the Provisional Ballot Affidavit Envelopes at least 24 hours prior to the scheduled meeting of the ballot board.

(g) Voter Registrar Review of Provisional Ballot Affidavit Envelopes.

(A) No record of voter registration application on file in this county;

(B) Registration cancelled on ________ (fill in date);

(D) Incomplete registration received, but additional information not returned;

(E) Voter rejected for registration due to ineligibility;

(F) Registered to vote, but erroneously listed in wrong precinct;

(G) Registered to vote in a different precinct within the county;

(H) Information on file indicating applicant completed a voter registration application, but it was never received in the Voter Registrar's office; and/or

(I) Voter erroneously removed from list of registered voters.

(2) The Voter Registrar shall sign and date his review of each Provisional Ballot Affidavit Envelope.

(5) The Voter Registrar shall keep the envelopes by election precinct during the review. The Voter Registrar shall replace the Provisional Ballot Affidavit Envelopes in the boxes in which the Provisional Ballot Affidavit Envelopes were originally received for transfer to the Early Voting Ballot Board, along with the List of Provisional Voters for each precinct. The copy of the Summary of Provisional Ballots is returned to the General Custodian. The box is relocked and resealed in the same manner in which it was received. The serial number of the seal shall be recorded on the Verification of Provisional Ballots and Serial Number form.

(7) Poll Watchers are not entitled to be present during the Voter Registrar's review.

(i) Review of Provisional Ballot Affidavit Envelopes by Early Voting Ballot Board; Counting Rules.

(3) The Early Voting Ballot Board must receive and review the Provisional Ballot Affidavit Envelopes.

(A) If the Voter Registrar indicates that the Provisional Voter is registered to vote and was erroneously registered in the wrong election precinct, the ballot shall be counted.

(C) If the Election Judge indicated that the Voter did not provide a valid registration certificate or other form of identification, the ballot shall not be counted.

(E) If the Voter Registrar indicates that there is no record of the Provisional Voter's registration application on file with the county, the provisional ballot shall not be counted.

(F) If the Voter Registrar indicates that the Provisional Voter's registration has been cancelled and provides the date, the ballot shall not be counted.

(H) If the Voter Registrar indicates that an incomplete application was received from the Provisional Voter but the required additional information was not returned, the ballot shall not be counted.

(I) If the Voter Registrar indicates that the Provisional Voter's registration application was rejected due to ineligibility, the ballot shall not be counted.

(J) If the Voter Registrar indicates that the Provisional Voter is registered to vote at a different precinct other than the one the Voter voted in, the ballot shall not be counted.

(K) If the board determines that the Provisional Voter was not registered and not entitled to vote at the election precinct where the ballot was cast, the ballot shall not be counted.

(L) The Voter Registrar has information in the office that the Voter did complete an application, and the Voter is otherwise qualified, the ballot shall be counted.

(M) If the Voter was erroneously removed from list and Voter is otherwise qualified to vote, the ballot shall be counted.

(5) The presiding judge shall indicate the disposition of each ballot on the appropriate space of the Provisional Ballot Affidavit Envelope.

(6) The presiding judge shall indicate the disposition of each Provisional Ballot Affidavit Envelope on the List of Provisional Voters for that precinct.

(7) The ballots to be counted shall be removed from their Provisional Ballot Affidavit Envelopes and counted in the regular manner, unless the presiding judge of the ballot board decides to count the ballots by hand. If counted by hand, the ballots are tallied by precinct in the regular manner. The board prepares the returns and submits the returns to the General Custodian of election records.

(9) If the provisional ballots are to be counted electronically:

(A) Prior to the beginning of the count at a central counting station, the manager shall run the required second logic and accuracy test using the same test deck as on Election Day. After the count is complete, the manager shall run the required third logic and accuracy test. If the test is not successful, the count is void.

(B) The central counting manager may add the provisional ballots to the original returns by hand in order to provide one complete return sheet or may provide a return sheet with just provisional ballot vote totals. The return sheets are distributed in the same manner as on Election Day.

(C) The counted provisional ballots are returned to the General Custodian of election records and retained for the appropriate preservation period.

(10) The List of Provisional Voters for each precinct shall be delivered to the General Custodian in the Envelope for Accepted and Provisional Ballot Affidavit Envelopes.

(11) The provisional ballots and Provisional Ballot Affidavit Envelopes shall be retained for the appropriate preservation period for the election.

(12) The Lists of Provisional Voters for each precinct shall be retained and used by the General Custodian of election records to provide information to Voters on whether the provisional ballot was counted or not.

(13) All Provisional Ballot Affidavit Envelopes and the List of Provisional Voters are public records.

(14) Rejected Provisional Ballot Affidavit Envelopes may not be opened except by court order.

(15) Poll Watchers are entitled to be present at the meeting of Early Voting Ballot Board pursuant to §33.054 of the Texas Election Code.

§81.175.Provisional Voting Procedures for Electronic Voting System: Optical Scan Precinct Ballot Counters.

(a) Polling Place Preparation

(2) The Election Judge shall keep the provisional ballots separate from the regular ballots.

(b) Eligibility to vote provisional ballot.

(1) At all elections, the following Voters shall be eligible to cast a provisional ballot:

(B) A Voter who is designated as a first time Voter on the list of registered voters, but who is unable to produce the required identification; or

(D) A Voter who votes during the polling hours that are extended by a state or federal court; or

(E) A Voter who is registered to vote but attempting to vote in a different precinct other than the one in which the Voter is registered.

(F) A Voter who is required to present identification but does not.

(G) A Voter who is on the list, but registered residence address is outside the political subdivision.

(2) A person voting by mail may not vote a provisional ballot.

(B) a form of identification containing the person's photograph that establishes the person's identity;

(C) a birth certificate or other document confirming birth that is admissible in a court of law and establishes the person's identity;

(D) United States citizenship papers issued to the person;

(E) a United States passport issued to the person;

(F) official mail addressed to the person by name from a governmental entity;

(G) a copy of a current utility bill, bank statement, government check, paycheck or other government document that shows the name and address of the Voter; or

(H) any other form of identification prescribed by the secretary of state.

(3) Prior to casting a provisional ballot, the Voter shall be required to sign a Provisional Ballot Affidavit Envelope. The Provisional Ballot Affidavit Envelope shall state that the Voter is a registered Voter in the political subdivision and a resident on election day and that he is eligible to vote in the election. The Provisional Ballot Affidavit Envelope shall also require the information necessary to register the Voter, if he proves to be unregistered. A Voter who refuses to sign the Provisional Ballot Affidavit Envelope is not eligible to vote provisionally.

(5) The Election Judge shall enter the Provisional Voter's name on the list of Provisional Voter's form.

(6) The Election Judge shall add the name of the Provisional Voter to the poll list and check the column "Provisional".

(7) The Provisional Voter signs the regular signature roster.

(8) The Election Judge shall check the reason under which the Voter voted provisionally on the provisional ballot envelope. The reasons include:

(A) Voter not on list of registered voters, Voter Registrar could not be reached;

(B) Voter not on list of registered voters and could not be verified by Voter Registrar;

(D) Voter not on list and no identification;

(E) Voter on list of persons who voted early by mail, Voter says he/she did not receive or return the ballot and refuses to cancel the ballot with the Early Voting Clerk; or

(F) First time Voter without any identification.

(9) The Election Judge shall then sign the provisional ballot envelope.

(10) The Election Judge shall direct the Voter to choose a ballot from a stack of pre-designated "provisional" ballots.

(11) The Election Judge shall inform the Voter that ballots stamped "provisional" will not be counted if placed in the ballot box without sealing it inside the corresponding envelope.

(13) After the provisional ballot has been voted, the Voter shall

(A) seal the provisional ballot in a plain white secrecy envelope,

(B) seal the secrecy envelope inside the provisional ballot envelope; and

(C) deposit the Provisional Ballot Affidavit Envelope in the Ballot Box #1 or a separate container that meets the requirements of Section 51.034 of the Code or has been approved by the Secretary of State.

(d) Early Voting Provisional Ballot Procedures.

(1) To the extent practicable, the Early Voting Clerk or Deputy Early Voting Clerk shall follow election day provisional ballot procedures during the early voting period.

(2) The Provisional Voter's precinct number shall be added to an Early Voting List of Provisional Voters.

(3) The presiding judge shall direct the provisional ballot envelopes to be separated from the regularly cast ballots and placed in a ballot box or transfer case for delivery to the General Custodian of election records. The General Custodian shall deliver the provisional ballots to the Voter Registrar. The Voter Registrar shall sign the List of Early Voting Provisional Voters to verify receipt of the provisional ballot envelopes.

(4) The Voter Registrar shall review the Provisional Ballot Affidavit Envelopes as set out in subsection (e) of this section.

(e) Provisional Ballot Affidavit Envelope Transfer Procedures.

(1) After the election day polls have closed, the Election Judge shall enter the number of Provisional Ballot Affidavit Envelopes cast on the register of official ballots and on the List of Provisional Voters.

(2) The Election Judge shall place a copy of the List of Provisional Voters form inside Envelope Number 2.

(3) The ballot box (or other secure container) containing ballots cast on the tabulator and the separate ballot box (or other secure container) containing Provisional Ballot Affidavit Envelopes shall be delivered to the General Custodian of election records or central counting personnel, if applicable under §127.157 of the Texas Election Code.

(4) After the polls have closed and the ballots cast on the precinct tabulator have been reviewed, if ballots stamped "provisional" but not contained in a Provisional Ballot Affidavit Envelope are discovered, such ballots may not be counted and are not transferred to the Voter Registrar. The ballots shall be treated as irregularly marked ballots and the procedure set out in Section 127.157 of the Code.

(5) The voted Provisional Ballot Affidavit Envelopes shall be placed into a ballot box or transfer case and locked with a copy of the List(s) of Provisional Voters.

(6) The General Custodian of election records or central counting station personnel, if applicable under §127.157 of the Texas Election Code, shall verify that the number of Provisional Voters on the List of Provisional Voters matches the number of Provisional Ballot Affidavit Envelopes recorded on the ballot register. The General Custodian shall also sign the List of Provisional Voters evidencing the number of Provisional Voters per precinct and the number of Provisional Ballot Affidavit Envelopes to be forwarded to the Voter Registrar.

(7) The General Custodian shall also prepare a Summary of Provisional Ballots listing each precinct and the number of Provisional Ballot Affidavit Envelopes received by that precinct.

(8) The General Custodian shall give the Voter Registrar a copy of the Summary of Provisional Ballots at the same time the Provisional Ballot Affidavit Envelopes and List of Provisional Voters are delivered to the Voter Registrar.

(9) The General Custodian shall lock and seal each ballot box or transfer case that contains Provisional Ballot Affidavit Envelopes prior to delivery to the Voter Registrar. The numbers on the seal shall be recorded on the Summary of Provisional Ballots.

(10) A Poll Watcher, if available, may sign the Summary of Provisional Ballots.

(f) Transfer to Voter Registrar.

(4) The Voter Registrar shall break the seal and unlock the box.

(7) If the Early Voting Ballot Board meets prior to election day to prepare ballots for counting as authorized under Section 87.101 of the Code, the Voter Registrar may attend the meeting and take possession of early voting Provisional Ballot Affidavit Envelopes prior to election day. The Voter Registrar shall give the General Custodian of election records written notice of his or her intent to take early possession of the Provisional Ballot Affidavit Envelopes at least 24 hours prior to the scheduled meeting of the ballot board.

(g) Voter Registrar Review of Provisional Ballot Affidavit Envelopes

(A) No record of voter registration application on file in this county;

(B) Registration cancelled on ________ (fill in date);

(D) Incomplete registration received, but additional information not returned;

(E) Voter rejected for registration due to ineligibility;

(F) Registered to vote, but erroneously listed in wrong precinct;

(G) Registered to vote in a different precinct within the county;

(H) Information on file indicating applicant completed a voter registration application, but it was never received in the Voter Registrar's office; and/or

(I) Voter erroneously removed from list of registered voters.

(2) The Voter Registrar shall sign and date his review of each Provisional Ballot Affidavit Envelope.

(5) The Voter Registrar shall keep the Provisional Ballot Affidavit Envelopes by election precinct during the review. The Voter Registrar shall replace the Provisional Ballot Affidavit Envelopes in the boxes in which the Provisional Ballot Affidavit Envelopes were originally received for transfer to the Early Voting Ballot Board, along with the List of Provisional Voters for each precinct. The copy of the Summary of Provisional Ballots is returned to the General Custodian. The box is relocked and resealed in the same manner in which it was received. The serial number of the seal shall be recorded on the Verification of Provisional Ballots and Serial Number form.

(7) Poll Watchers are not entitled to be present during the Voter Registrar's review.

(i) Review of Provisional Ballot Affidavit Envelopes by Early Voting Ballot Board; Counting Rules.

(3) The Early Voting Ballot Board must receive and review the Provisional Ballot Affidavit Envelopes.

(A) If the Voter Registrar indicates that the Provisional Voter is registered to vote and was erroneously registered in the wrong election precinct, the ballot shall be counted.

(C) If the Election Judge indicated that the Voter did not provide a valid registration certificate or other form of identification, the ballot shall not be counted.

(E) If the Voter Registrar indicates that there is no record of the Provisional Voter's registration application on file with the county, the provisional ballot shall not be counted.

(F) If the Voter Registrar indicates that the Provisional Voter's registration has been cancelled and provides the date, the ballot shall not be counted.

(H) If the Voter Registrar indicates that an incomplete application was received from the Provisional Voter but the required additional information was not returned, the ballot shall not be counted.

(I) If the Voter Registrar indicates that the Provisional Voter's registration application was rejected due to ineligibility, the ballot shall not be counted.

(J) If the Voter Registrar indicates that the Provisional Voter is registered to vote at a different precinct other than the one the Voter voted in, the ballot shall not be counted.

(K) If the board determines that the Provisional Voter was not registered and not entitled to vote at the election precinct where the ballot was cast, the ballot shall not be counted.

(L) The Voter Registrar has information in the office that the Voter did complete an application, and the Voter is otherwise qualified, the ballot shall be counted.

(M) If the Voter was erroneously removed from list and Voter is otherwise qualified to vote, the ballot shall be counted.

(5) The presiding judge shall indicate the disposition of each ballot on the Provisional Ballot Affidavit Envelope.

(6) The presiding judge shall indicate the disposition of each ballot on the appropriate space of the List of Provisional Voters for that precinct.

(7) The ballots to be counted shall be removed from their Provisional Ballot Affidavit Envelopes and counted under the normal procedure for counting ballots by mail in the election, unless the presiding judge of the ballot board decides to count the ballots by hand. If counted by hand, the ballots are tallied by precinct in the regular manner. The board prepares the returns and submits the returns to the General Custodian of election records.

(9) If the provisional ballots are to be counted electronically:

(C) The counted Provisional Ballot Affidavit Envelopes are secured and returned to the General Custodian of election records to be retained for the appropriate preservation period.

(10) Once counted, the Provisional Ballot Affidavit Envelopes shall be re-locked in the container and returned to the General Custodian of election records. The key shall be delivered to the General Custodian of the key.

(11) The List of Provisional Voters for each precinct shall be delivered to the General Custodian in the Envelope for Accepted Provisional Ballot Affidavit Envelopes.

(12) The provisional ballots and Provisional Ballot Affidavit Envelopes shall be retained for the appropriate preservation period for the election.

(14) All Provisional Ballot Affidavit Envelopes and the List of Provisional Voters are public records.

(15) Rejected Provisional Ballot Affidavit Envelopes may not be opened except by court order.

(16) Poll Watchers are entitled to be present at the meeting of Early Voting Ballot Board pursuant to §33.054 of the Texas Election Code.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 2, 2004.

TRD-200400654

Ann McGeehan

Director of Elections

Office of the Secretary of State

Effective date: February 22, 2004

Proposal publication date: November 7, 2003

For further information, please call: (512) 463-5562

Chapter 95. UNIFORM COMMERCIAL CODE

Subchapter G. SEARCH REQUESTS AND REPORTS

1 TAC §95.504

The Office of the Secretary of State adopts amendments to Chapter 95, Subchapter G, §95.504, concerning Search Requests and Reports. Section 95.504 is adopted without changes to the proposed text as published in the December 26, 2003, issue of the Texas Register (28 TexReg 11449) and will not be republished.

The purpose of the adoption of the amendments is to more accurately reflect current filing policies and procedures due to statutory requirements.

The amendments provide current filing policies and procedures for the Uniform Commercial Code Section.

No comments were received regarding adoption of the amendments.

The amendments are adopted under §§9.501 - 9.527, Texas Business and Commerce Code, §§35.01 - 35.09, Texas Business and Commerce Code, §§14.001 - 14.007, Texas Property Code, §§70.401 - 70.410, Texas Property Code, Chapter 128, Texas Agriculture Code, Chapter 188, Texas Agriculture Code, §42.22, Texas Code of Criminal Procedure, and §§51.901 - 51.905, Texas Government Code which provides the Secretary of State with the authority to adopt rules necessary to administer Subchapter D of Chapter 9, Texas Business and Commerce Code, Subchapter A of Chapter 35, Miscellaneous, Chapter 14, Uniform Federal Lien Registration Act, Subchapter E of Chapter 70, Texas Property Code, Subtitle H of Title 5, Texas Agriculture Code, Subtitle E of Title 6, Texas Agriculture Code, and Subchapter J of Chapter 51, Texas Government Code.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 30, 2004.

TRD-200400617

Lorna Wassdorf

Director, Statutory Filings Division

Office of the Secretary of State

Effective date: February 22, 2004

Proposal publication date: December 26, 2003

For further information, please call: (512) 463-5701

Part 15. TEXAS HEALTH AND HUMAN SERVICES COMMISSION

Chapter 354. MEDICAID HEALTH SERVICES

Subchapter A. PURCHASED HEALTH SERVICES

30. IN-HOME TOTAL PARENTERAL HYPERALIMENTATION SERVICES

1 TAC §354.1391

The Texas Health and Human Services Commission (HHSC) adopts proposed new §354.1391, concerning in-home total parenteral hyperalimentation services and a new division 30, concerning in-home total parenteral hyperalimentation services, in its purchased health services rules without changes to the proposed text as published in the September 12, 2003, issue of the Texas Register (28 TexReg 7906) and will not be republished.

The new rule describes in-home parenteral hyperalimentation services as a benefit of Texas Medicaid in the appropriate chapter of HHSC's Medicaid rules and is a result of technical changes made to remove language describing program benefits from Chapter 355 Medicaid Reimbursement Rates, Subchapter J Purchased Health Services, Division 5 General Administration, §355.8087 In-home Total Parenteral Hyperalimentation Services.

The Commission did not receive comments during the 30-day comment period.

The new rule is adopted under the Texas Government Code, §531.033, which provides the Commissioner of HHSC with broad rulemaking authority; and Human Resources Code, §32.021, and the Texas Government Code, §531.021, which provide HHSC with the authority to administer the federal medical assistance (Medicaid) program in Texas.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 28, 2004.

TRD-200400532

Steve Aragón

General Counsel

Texas Health and Human Services Commission

Effective date: February 17, 2004

Proposal publication date: September 12, 2003

For further information, please call: (512) 424-6576

31. IN-HOME RESPIRATORY THERAPY SERVICES FOR VENTILATOR-DEPENDENT PERSONS

1 TAC §354.1401

The Texas Health and Human Services Commission (HHSC) adopts proposed new §354.1401, concerning in-home respiratory therapy services for ventilator-dependent persons and a new division 31 concerning in-home respiratory therapy services for ventilator-dependent persons, in its purchased health services rules, without changes to the proposed text as published in the September 12, 2003, issue of the Texas Register (28 TexReg 7907) and will not be republished.

The new rule describes in-home respiratory therapy services for ventilator-dependent persons as a benefit of Texas Medicaid in the appropriate chapter of HHSC's Medicaid rules and is a result of technical changes made to remove language describing program benefits from Chapter 355 Medicaid Reimbursement Rates, Subchapter J Purchased Health Services, Division 5 General Administration, §355.8089 In-home Respiratory Therapy Services for Ventilator-Dependent Persons.

The Commission did not receive comments during the 30-day comment period.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 28, 2004.

TRD-200400534

Steve Aragón

General Counsel

Texas Health and Human Services Commission

Effective date: February 17, 2004

Proposal publication date: September 12, 2003

For further information, please call: (512) 424-6576

Chapter 355. MEDICAID REIMBURSEMENT RATES

Subchapter J. PURCHASED HEALTH SERVICES

5. GENERAL ADMINISTRATION

1 TAC §355.8087

The Texas Health and Human Services Commission (HHSC) adopts the proposed amendment to §355.8087 concerning in-home total parenteral hyperalimentation services, without changes to the proposed text as published in the September 12, 2003, issue of the Texas Register (28 TexReg 7908) and will not be republished.

The amendment is a result of technical changes needed to comply with the Administration Simplification provisions of the Health Insurance Portability and Accountability Act (HIPAA); HIPAA requires the use of national standards for electronic health care transactions and national identifiers for providers, health plans, and employees. With the implementation of HIPAA, local reimbursement codes related to the reimbursement of hyperalimentation services were discontinued. In addition, editorial changes were made to remove benefits language from HHSC's applicable reimbursement rule and to reflect the transfer of the rule from the Texas Department of Health to HHSC.

The Commission did not receive comments during the 30-day comment period.

The amendment is adopted under the Texas Government Code, §531.033, which provides the Commissioner of HHSC with broad rulemaking authority; and Human Resources Code, §32.021, and the Texas Government Code, §531.021, which provide HHSC with the authority to administer the federal medical assistance (Medicaid) program in Texas, and the Texas Government Code, §531.021(b), which provides HHSC with the authority to propose and adopt rules governing the determination of Medicaid reimbursements.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 28, 2004.

TRD-200400533

Steve Aragón

General Counsel

Texas Health and Human Services Commission

Effective date: February 17, 2004

Proposal publication date: September 12, 2003

For further information, please call: (512) 424-6576

1 TAC §355.8089

The Texas Health and Human Services Commission (HHSC) adopts the proposed amendment to §355.8089 concerning in-home respiratory therapy services for ventilator-dependent persons, without changes to the proposed text as published in the September 12, 2003, issue of the Texas Register (28 TexReg 7910) and will not be republished.

The amendment is a result of technical changes needed to comply with the administration simplification provisions of the Health Insurance Portability and Accountability Act (HIPAA) of 1996 that requires the use of national standards for electronic health care transactions and national identifiers for providers, health plans, and employees. With the implementation of HIPAA, necessary respiratory equipment supplies were included in the monthly respiratory equipment rental fees and will not be separately reimbursed except for those Medicaid clients who have their own respiratory equipment and do not need to rent the equipment. Therefore, the local reimbursement code related to the reimbursement of disposable supplies provided by certified respiratory care practitioners was discontinued. Respiratory equipment supplies needed by Medicaid clients who have their own respiratory equipment will still be available and reimbursable through Texas Medicaid Home Health Services. Thus, Medicaid clients will continue to receive the same benefits, which will be billed using appropriate HIPAA codes. In addition, editorial changes were made to remove benefits language from HHSC's applicable reimbursement rule and to reflect the transfer of the rule from the Texas Department of Health to HHSC.

The Commission did not receive comments during the 30-day comment period.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 28, 2004.

TRD-200400535

Steve Aragón

General Counsel

Texas Health and Human Services Commission

Effective date: February 17, 2004

Proposal publication date: September 12, 2003

For further information, please call: (512) 424-6576

Chapter 393. INFORMAL DISPUTE RESOLUTION AND INFORMAL RECONSIDERATION

1 TAC §393.1

The Health and Human Services Commission (HHSC) adopts new Chapter 393, Informal Dispute Resolution and Informal Reconsideration and §393.1, Informal Dispute Resolution, with changes to the proposed text as published in the September 5, 2003, issue of the Texas Register (28 TexReg 7535). The text of §393.1 will be republished.

Section 393.1 sets forth rules for the informal dispute resolution (IDR) process. In that process, a nursing facility, assisted living facility, or an intermediate care facility for persons with mental retardation/related conditions has the opportunity to dispute deficiencies and/or violations cited against the facility by the State survey agency or its designee. The rule is adopted as required by Senate Bill 1839, which was passed by the 77th Texas Legislature. Senate Bill 1839, codified at Texas Government Code §531.058, required the establishment of informal dispute resolution and informal reconsideration functions by HHSC. Senate Bill 1839 prohibits HHSC's delegation of the informal dispute resolution process to any other state agency. The rule identifies the timelines, some of which were set by Senate Bill 1839 that the requesting provider, DHS, and HHSC must meet. The rule defines the requirements for each aspect of the IDR process, including submission of an IDR request, submission of supporting documentation, and face-to-face and telephone IDR conferences. The rule also identifies the possible outcomes of an IDR.

HHSC based the rule on operating procedures developed by HHSC in conjunction with an extensive work group including informal dispute resolution stakeholders, e.g., long-term care providers and provider agencies as well as attorneys who represent the providers, representatives from Texas Department of Human Services (DHS), ombudsmen, advocates, and consumers of long-term care services. In addition, HHSC included the requirements for IDR set out in the Centers for Medicare and Medicaid Services (CMS) State Operations Manual, Section 7212.

HHSC received comments from the Private Provider Association of Texas and an internal commenter. The following changes were made in response to comments:

Section 393.1(h)(6) was added to include an IDR determination that there is sufficient evidence to sustain the scope and severity assessment as cited;

Section 393.1(l) was amended to extend the 24-hour time frame to "until the end of the second business day after notification"; and

Section 393.1(n) was amended to delete the word "brief" from the description of an IDR conference.

The changes in the adopted rule respond to public comments or otherwise reflect non-substantive variations from the proposed rule.

The comments and HHSC's responses are summarized below.

Comment, Private Provider Association of Texas: HHSC reviews scope and severity for nursing homes in §393.1(h)(5), and there is no reason to treat intermediate care facilities for persons with mental retardation/related conditions (ICF/MR) differently. Currently there are two separate processes for ICF/MR, IDR and informal review, and no sound reason not to combine them and apply §393.1(h)(5) to all facilities.

Response: HHSC disagrees. HHSC combined the ICF/MR IDR and informal review processes in January 2002. These are no longer two separate functions. Section 393.1(h)(5) would not apply to ICFs/MR because scope and severity assessments are specific to nursing facilities and not applied to ICFs/MR. For ICFs/MR, the IDR program reviews the citation of ICF/MR conditions of participation, which serve a function similar to scope and severity assessment in nursing facilities, and determines outcomes according to the State Operations Manual, Guidance to Surveyors.

Comment, Private Provider Association of Texas: Facilities have provided HHSC with relevant information to consider in both the submissions under §393.1(e) and (k). The State survey agency has historically elected to essentially not participate in IDR and neither sends a meaningful written submission nor attends the conference. Notably absent from the agency submission are the surveyor notes which are the only first hand documentation of their assessment. Section 393.1(j) condones this practice and effectively limits the duty to produce the most meaningful documents. Section 393.1(j) should be a minimum requirement, leaving open the opportunity to voluntarily produce more or request more under §393.1(l). The concern for confidentiality previously argued by the State survey agency is unreasonable in light of the HHSC requirement not to eliminate individual names from records. The State survey agency may continue to elect to withhold valuable documents in the IDR process, but it is inappropriate for HHSC to approve of this practice. Section 393.1(j) does just this, and it demeans the IDR process.

Response: HHSC disagrees. During development of the proposed IDR rule, HHSC discussed the use of surveyors' notes during the IDR process with both the State survey agency (Texas Department of Human Services, DHS) and the Centers for Medicare and Medicaid Services (CMS). Both agencies confirmed that DHS' statement of deficiencies is the official, stand-alone document that includes pertinent information from the surveyors' notes as needed to support a deficiency/violation. The content of the DHS statement of deficiencies is intended to uphold on its own the deficiencies/violations cited by the survey team. For IDR purposes, information in surveyors' notes would be duplicative and/or not pertinent to the disputed citation. While the request for and review of surveyors' notes may be appropriate during a formal appeals process (e.g., discovery), it is not appropriate for the informal dispute resolution process.

HHSC invites the State survey agency to all face-to-face and telephone IDR conferences. DHS state office legal representatives typically attend IDR conferences. Because the IDR conference is the provider's opportunity to clarify or emphasize important aspects of the rebuttal to a citation, DHS is not allowed to present information.

Comment, Private Provider Association of Texas: As a consequence of the minimal disclosure made by the State survey agency, the right granted under §393.1(k) is meaningless if it is limited only to replies to the "non-information" required of the State survey agency in §393.1(j). Providers should be given the additional time to provide any relevant information to the issues raised, not just to reply to the meaningless information submitted by the State survey agency as the rule is currently drafted. Often providers request letters from parents and doctors that cannot be provided in the timeframe for initial submission. If the goal of the process is to get to the truth of the matter, then there is no reason to limit the scope of submission. This would additionally be consistent with the HHSC practice under the guidelines predating the rule.

Response: HHSC agrees in part. To meet the statutory requirement that HHSC complete IDR reviews within 30 days, HHSC must continue procedures to accomplish that end (e.g., two-business day response following the submission of information to the provider/provider representative and the State survey agency). HHSC has extended the 24-hour timeline in the proposed rule at §393.1(l) to two business days after notification. As to the amount of information disclosed by the State survey agency, this issue was discussed above in HHSC's response to Comment 2.

Comment, Private Provider Association of Texas: The term "brief" in §393.1(n) is vague. Providers are currently given less than 30 minutes to make an oral presentation. The rule should provide definite information and either provide the time HHSC intends to give or strike the indefinite term "brief".

Response: HHSC agrees in part. IDR procedures, revised September 15, 2003, allow the provider/provider representative 30 minutes for a telephone or face-to-face IDR conference. The IDR Program does allow this time period for IDR reviews that involve an unusually large number of disputed citations. In January 2003, during the Medical Care Advisory Committee's review of the draft IDR rule, the Committee advised against inserting "30 minutes" into IDR rule language. The term "brief" has been deleted from the IDR rule, §393.1(n).

Comment, Internal Commenter: There is no language in the proposed rule that indicates an IDR outcome for nursing facilities to sustain a scope and severity assessment at the immediate jeopardy or substandard quality of care level cited.

Response: HHSC agrees. The following outcome has been added at §393.1(h)(6): For Nursing Facilities Only: a determination is made that there is sufficient evidence to sustain the scope and severity assessment as cited.

Comment, Internal Commenter: Through stakeholder input, HHSC determined that the State survey agency provides the statements of deficiency/violation to facilities by a variety of methods, including certified mail and hand delivery.

Response: HHSC agrees. HHSC has removed the requirement that the State survey agency provide the statement of deficiency/violation to facilities only by certified mail; "by certified mail" has been deleted from §393.1(b).

The new section is adopted under §531.033, Government Code, which provides the executive commissioner of HHSC with broad rulemaking authority and under §531.058, Government Code, which provides HHSC the authority to establish an informal dispute resolution program for certain long-term care facilities.

§393.1.Informal Dispute Resolution.

(a) The Texas Health and Human Services Commission (HHSC) provides an informal dispute resolution (IDR) process for nursing facilities, intermediate care facilities for persons with mental retardation (ICFs/MR), and assisted living facilities through which a facility may dispute deficiencies/violations cited against that facility by the State survey agency or its designee. ICFs/MR are entitled to an IDR only if the cited deficiencies/violations do not pose an imminent threat of danger to the health and safety of an ICF/MR resident.

(b) HHSC must receive a facility's written request for an IDR no later than the 10th calendar day after the facility's receipt of the statement of deficiencies/violations from the State survey agency or its designee. If the 10th calendar day falls on a Saturday, Sunday, or legal holiday, the due date becomes the following business day.

(1) The facility must submit its written request for an IDR on the form designated for that purpose by HHSC. HHSC will make that form publicly available, e.g., maintained on the HHSC website.

(2) The facility must also file with its IDR request the registration information, as required by §531.058, Texas Government Code.

(c) The facility must concurrently provide a copy of its request for an IDR to the State survey agency's regional office (Regional Office) under which the facility operates. The facility must provide confirmation to HHSC that the Regional Office has been notified of the IDR request. HHSC will not consider an IDR request to have been received until the facility provides a fully executed IDR request form as well as confirmation that the facility provided a copy of that IDR request form to the relevant Regional Office.

(d) Within 3 business days of its receipt of the facility's written request for an IDR, HHSC will notify the facility of its receipt of the request.

(e) Within 5 calendar days of HHSC's receipt of the facility's request for an IDR, HHSC must receive from the facility 2 copies of the facility's rebuttal letter and attached supporting documentation. If the 5th calendar day falls on a Saturday, Sunday, or legal holiday, the due date becomes the following business day. The rebuttal letter must contain:

(1) a list of the deficiencies/violations disputed (only those deficiencies/violations listed on the IDR request form and addressed in the rebuttal letter/supporting documentation will be reviewed);

(2) the reason(s) each deficiency/violation is disputed;

(3) the outcome desired by the facility for each disputed deficiency/violation; and

(4) documentation or information, e.g., a witness statement, that directly demonstrates that each disputed deficiency/violation is not sustainable. Such documentation should:

(A) be labeled and legible;

(B) be non-duplicative;

(D) describe the relevance of the documentation/information to the disputed deficiency/violation.

(f) The facility should submit its rebuttal letter, including any supporting documentation or information, in the following format:

(1) Begin each attachment on a new page with a labeled tab or other descriptive identification.

(2) Tab, label, or otherwise identify each with consecutive numbers or letters on the right-hand side or lower edge of the document.

(3) Reference each tab in the rebuttal letter. An attachment must be identified in the rebuttal letter, tabbed, and labeled or otherwise identified, or HHSC will not review the attachment.

(4) Organize the attachments by deficiency/violation and cross-reference to the disputed deficiency/violation in the rebuttal letter.

(5) Identify which attachment(s) relate to a disputed deficiency/violation, in the event that the facility disputes more than one deficiency/violation.

(6) Indicate, if known, whether or not any of the attachments were provided to State survey agency personnel at the time of the survey and identify the attachments that were provided, if any.

(7) Number all pages consecutively.

(8) Highlight information relevant to the disputed deficiency/violation, such as a particular portion of a narrative.

(9) Address each disputed deficiency/violation in the rebuttal letter in the same order as it is addressed in the statement of deficiencies/violations from the State survey agency. Deficiencies/violations identified on the IDR request form but not addressed in the rebuttal letter or supporting documentation will not be reviewed.

(10) Identify the facility name and survey exit date on all documents.

(11) Set out the typewritten full name and title of any person signing an affidavit, written statement, or other document. Indicate the date on which the document was created.

(12) Identify the resident referenced in the disputed deficiency/violation and include the resident's name on all relevant attachments.

(13) Do not de-identify documents that name residents referenced in disputed deficiencies/violations.

(14) Submit supporting documentation or information by regular mail, hand delivery, or overnight delivery only. HHSC will not review supporting documentation submitted by facsimile transmission.

(g) If the facility substantially complies with the procedures set out in subsections (e) and (f) of this section, HHSC will proceed with its review of the facility's IDR request.

(h) It is the facility's responsibility to present sufficient credible information to HHSC to support the outcome requested by the facility. Possible outcomes of an IDR are:

(1) a determination that there is insufficient evidence to sustain a deficiency/violation; and/or

(2) a determination that there is insufficient evidence to sustain a portion or a finding of a deficiency/violation; and/or

(3) a determination that there is sufficient evidence to sustain a deficiency/violation; and/or

(4) a determination is made that there is insufficient evidence to sustain the deficiency/violation as cited but that there is sufficient evidence to sustain a different citation; and/or

(5) for Nursing Facilities Only: a determination is made that there is insufficient evidence to sustain the scope and severity assessment but that there is sufficient evidence to sustain a reduced scope and severity assessment (for Immediate Jeopardy or Substandard Quality of Care only); and/or

(6) for Nursing Facilities Only: a determination is made that there is sufficient evidence to sustain the scope and severity assessment as cited.

(i) HHSC will not conduct an IDR based on alleged surveyor misconduct, alleged state survey agency failure to comply with survey protocol, complaints about existing federal or state standards, or attempts to clear previously corrected deficiencies/violations.

(j) Upon receipt of the facility's IDR request, the State survey agency must submit to HHSC by means allowing confirmation of HHSC's receipt, e.g., overnight delivery or electronic mail, the following supporting documentation as specified in the IDR operating procedures:

(1) resident identifier list;

(2) report of contact; and

(3) ASPEN event ID number.

(k) Any information related to an IDR request that is received by HHSC from either the facility or the State survey agency will be made available by HHSC to the other party. Parties have until the end of the second business day after receipt of such shared IDR information to respond to HHSC about that information. HHSC will share any responses with the other party.

(l) HHSC may request additional information from the facility and/or the State survey agency. Both parties will be notified of the request for additional information, have until the end of the second business day after notification to respond to the request, and be provided copies of the response submitted to HHSC.

(m) Ex parte communications by the facility or by the State survey agency with HHSC personnel conducting the IDR are prohibited.

(n) An eligible facility may receive a telephone or face-to-face IDR conference provided that:

(1) the facility requested an IDR conference on the IDR request form; and

(2) the State survey agency's survey visit resulted in deficiencies/violations for which remedies are to be imposed or adverse action has been recommended; or

(3) the State survey agency's survey visit resulted in deficiencies/violations in which immediate jeopardy or immediate threat was identified.

(o) Any telephone or face-to-face IDR conference will be scheduled on or before the 22nd calendar day after HHSC received the IDR request. If the facility is unable to participate on the scheduled date, the IDR conference will be cancelled, and the IDR will continue as though no conference had been requested.

(p) The IDR conference is an opportunity for an eligible facility to emphasize important information previously submitted in the facility's rebuttal letter and/or response(s) to shared information. The facility may not present any new information at an IDR conference. The State survey agency may attend, but may not present information.

(q) HHSC will complete the IDR no later than the 30th calendar day after receipt of the facility's written request. If the 30th calendar day falls on a Saturday, Sunday or legal holiday, the due date becomes the following business day. The IDR decision shall be in writing, address all the issues raised by the facility, and explain the rationale for the decision.

(r) The time frames designated in the IDR process shall be computed in accordance with §311.014, Texas Government Code.

(s) HHSC may issue and enforce operating procedures concerning the IDR process and the conduct of IDR participants. IDR participants must comply with any such procedures. HHSC may deny an IDR request if the information submitted is incorrect, incomplete, or otherwise not in compliance with applicable HHSC operating procedures.

(t) HHSC will revise an IDR decision as a result of a review, requested by the State survey agency, and subsequent determination that the IDR decision may violate a federal law, regulation, or the CMS State Operations Manual.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 28, 2004.

TRD-200400546

Steve Aragón

General Counsel

Texas Health and Human Services Commission

Effective date: February 17, 2004

Proposal publication date: September 5, 2003

For further information, please call: (512) 424-6576