The Texas Commission on Alcohol and Drug Abuse (Commission) adopts the repeal of Chapter 148, §§148.1, 148.11, 148.21-148.28, 148.31, 148.101-148.103, 148.105, 148.106, 148.111-148.113, 148.115, 148.201-148.203, 148.205, 148.301-148.303, 148.311-148.313, 148.315, 148.316, 148.401, 148.403, 148.405, 148.406, 148.411-148.413, 148.421-148.424, 148.426, 148.501-148.504, 148.601-148.607, concerning Facility Licensure, without changes to the proposed text as published in the August 29, 2003, issue of the Texas Register (28 TexReg 7236).

The repeal of Chapter 148 is necessary because of extensive changes to the existing rules. Commission staff incorporated portions of other existing rules relating to standards of care for substance abuse services into a new Chapter 148 in an effort to improve the consistency of substance abuse services in the state and to comply with the legislative mandate that the Commission develop model program standards for substance abuse services.

There were no comments regarding the repeal of these sections.

Subchapter A. DEFINITIONS

The Texas Commission on Alcohol and Drug Abuse (Commission) adopts new Chapter 148, §§148.101-148.103, 148.201-148.218, 148.301, 148.401-148.409, 148.501-148.510, 148.601-148.603, 148.701-148.708, 148.801-148.805, 148.901-148.911, 148.1001-148.1004, 148.1101-148.1104, 148.1201-148.1207, 148.1301, 148.1401, and 148.1501-148.1506 pertaining to a Standard of Care, with changes to the text that was published in the August 29, 2003, Texas Register (28 TexReg 7240).

The new chapter 148 incorporates portions of existing rules relating to a standard of care for substance abuse services. The new rules are designed to ensure consistent, effective and efficient delivery of substance abuse services in the state. This standard of care is applicable to the provision of services throughout the state as a function of Commission licensure without regard to whether a licensee is funded by the Commission. In addition, these rules also provide a model standard of care for all programs funded by the State, whether licensed or not, and include guidelines for prevention programs and therapeutic communities.

The new rules contain information on facility licensure requirements, personnel practices and development, client rights, specific requirements for different types of program services, as well as information on food and nutrition, screening and assessment, medication, and residential physical plant requirements. Additionally, the new rules contain requirements that licensees initiate a quality management process for self evaluation.

The new rules clarify requirements for reporting incidents, staff training, and program services. The new rules adopt terminology that accurately reflects the treatment continuum. The detoxification provisions of the new rules are improved to clarify general requirements as well as to require 24-hour staff coverage in all residential detoxification programs. Screening, admission, consent and assessment processes have been revised.

Changes have been made to Chapter 148 as proposed. Rules for therapeutic communities, the use of LVNs during the screening process, and the care of children who are housed in treatment facilities where their parents receive treatment have been expanded or added. Clarification of the required number of service hours related to the intensity of treatment has been provided. The proposed section requiring the purchase a bond to cover the storage of client records in the event of facility closure has been eliminated. In addition, the section on hiring practices has been clarified to allow for new staff to start work before their criminal background check has been completed as long as they do not have any direct client contact until the check has been completed and the results assessed. In adopting Chapter 148, the Commission makes other grammatical and non-substantive changes for the purpose of clarifying its intent.

The public comment period began on August 29, 2003, with the publication of the proposed rules in the Texas Register and on the Commission's website, and ended October 15, 2003. Public meetings to discuss the rules were held during the comment period in Austin, Dallas and Houston. The Commission received the majority of comments in writing by email, fax and U.S. mail. Commission staff summarized the comments received and published draft responses for review on the Commission's website in advance of its November 12, 2003, open meeting. The draft included a number of changes in response to the concerns expressed. As directed by the Commissioners at the November 12 meeting, the rules were revised further and published along with a draft final order on the Commission's website in advance of the December 9, 2003, open meeting. Chapter 148 was approved for adoption during that meeting.

The Commission received comments on the proposed rules from Alcohol and Drug Abuse Council - Concho Valley; Alcohol and Drug Education Services; Alcoholic Rehabilitation Center; Alpha Home, Inc.; Amarillo Council on Alcoholism and Drug Abuse; The Association of Substance Abuse Programs (ASAP); Austin Recovery Center; Austin Travis County MHMR; Avenues Counseling Center; Bay Area Recovery Center; Brazos Valley Council on Alcohol and Substance Abuse; Cenikor; CiviGenics; Fort Bend Council on Family and Community Development, Inc.; Gateway Foundation, Inc.; Gulf Coast Center; Jefferson County Council on Alcohol and Drug Abuse; La Hacienda Treatment Center; Land Manor; Managed Care Center for Addictive/Other Disorders, Inc.; Memorial Hermann Prevention and Recovery Center; Montrose Counseling Center; Nexus; Permian Basin MHMR; Phoenix House; Reyes Law Firm; The Right Step - Houston; Riverside General Hospital; Sabine Valley Center; Sandstone Health Care, Inc. (Sandstone); Serenity Foundation of Texas; Serving Children and Adolescents in Need, Inc.; Shoreline, Inc.; South Texas Council on Alcohol and Drug Abuse; Southeast Texas Regional Planning Commission; Special Health Resources for Texas, Inc.; Sundown Ranch; Tarrant County MHMR; Texas Association of Addiction Professionals (TAAP); Texas Department of Criminal Justice (TDCJ); Texas Youth Commission; Travis County Juvenile Probation/CHOICES; Turning Point; Volunteers of America; and various individual commenters. The specific comments received and the Commission's responses appear below in rule number order.

§148.207. Discrimination. La Hacienda Treatment Center comments that as a for-profit, privately funded facility, they are concerned that discrimination due to economic condition might mean they must admit anyone regardless of his/her ability to pay for services. The Commission agrees and has revised §148.207 accordingly.

§148.214. Duty to Report. Brazos Valley Council on Alcohol and Substance Abuse requests the addition of language to this rule regarding illegal, unethical or unprofessional conduct. It suggests that the rule only apply to conduct that is judged to significantly impact the safety, confidentiality and well being of clients. The Commission disagrees because it believes that to include such a caveat would unacceptably dilute the duty to report and fail to ensure that unethical practices and conduct be reported.

§148.215. Impaired Providers. CiviGenics; Jefferson County Council on Alcohol and Drug Abuse; TAAP; and interested individuals comment that this rule should be strengthened. Most of the commenters support the creation of a peer assistance program funded by an increase in the licensure fee for Licensed Chemical Dependency Counselors (LCDC). The Commission believes the wording in this rule is sufficient. Mandatory reporting of impairment may work against the Commission's goals of encouraging impaired providers to seek help. An increase in the license fees for LCDC's to fund a peer assistance program would not necessarily increase access to substance abuse services. LCDC's, more so than other professionals, are aware of the services available to them by virtue of their training, education and involvement in the field of services. It is not clear how a licensee funded administrative entity would facilitate greater access to those services. The Commission does believe that employers may play a significant role in facilitating access to treatment. Therefore, the rule has been amended to require that the employer of an impaired employee provide information regarding available services.

§148.217(l). Specific Acts Prohibited. Amarillo Council on Alcoholism and Drug Abuse; ASAP; Austin Travis County MHMR; Avenues Counseling Center; Fort Bend Council on Family and Community Development, Inc.; Gateway Foundation, Inc.; La Hacienda Treatment Center; Land Manor; Managed Care Center for Addictive/Other Disorders, Inc.; Memorial Hermann Prevention and Recovery Center; Permian Basin Centers for MHMR; The Right Step- Houston; Serenity Foundation of Texas; and interested individuals comment on smoking restrictions. Several commenters note the contradiction between this rule, which prohibits clients from using tobacco products on site and §148.505(g), which establishes rules for smoking. The Commission agrees and has amended §148.217(l) to resolve this conflict.

§148.301. Standards for Evidence-Based Prevention Programs. A commenter expresses confusion regarding how to interpret §148.301. Another commenter questions why §148.301 was included in 40 TEX. ADMIN. CODE ch. 148 instead of 40 TEX. ADMIN. CODE ch. 147, Contract Program Requirements. The Commission responds that it issues this rule to provide general guidance for the provision of prevention services.

§148.301(9). Standards for Evidence-Based Prevention Programs. Avenues Counseling Center comments that it is often difficult to include parents in prevention activities. The Commission responds that the new rule does not require the inclusion of parents. Instead, the rule instructs that parents should be involved as appropriate.

§148.401. License Required. Land Manor; Jefferson County Council on Alcohol and Drug Abuse; Amarillo Council on Alcoholism and Drug Abuse; ASAP; Serenity Foundation of Texas; Alpha Home; Volunteers of America; and Austin Travis County MHMR comment regarding requiring outpatient sites to be licensed. The revised language used in the new rules represents a clarification of the current rule provision. The rule itself and Commission policy have not materially changed. Facilities are currently required to have a permit for each treatment site, including outpatient sites.

Additionally, ASAP commented that the Commission should recognize Joint Commission on Accreditation of Healthcare Organizations (JCAHO) accredited organizations by adopting a "deemed status" in the new rules to waive inspection of certain aspects of Commission licensed facilities. The Commission responds that due to the complexity of the issues involved and the need to coordinate with outside entities to ensure the continued protection of client health and safety, it declines to adopt a deemed status rule at this time.

The Commission has also deleted §148.409(g) regarding the requirement that providers purchase a bond sufficient in value to provide for the storage and protection of records if it closes its business operations. The provision is unnecessarily burdensome for providers.

§148.502(d). Operational Plan, Policies and Procedures. Riverside General Hospital and an interested individual comment that the previous rules regarding facilities housing children are sufficient to meet safety requirements. The new rules may interfere with a mother's ability to learn and assume responsibility for her child. The new rules should only apply if the facility has daycare. There is no current licensing rule regarding facilities housing children. To establish appropriate standards for these facilities, the Commission has decided to require compliance with certain rules relating to child-care. The Commission has deleted the requirement in the proposed rules that all facilities housing children obtain a day care license in lieu of complying with the minimum standards. The Commission has also narrowed the subject areas of the Texas Department of Protective and Regulatory Services child-care rules that apply to facilities housing children and those providing child-care. As a result, the language contained in the proposed §148.502(d) has been amended and moved to §148.910 of the rules, pertaining to women and children's services.

§148.503. Reporting Measures. ASAP; Land Manor; CiviGenics, Inc; Gateway Foundation, Inc; Texas Department of Criminal Justice (TDCJ); The Right Step-Houston; and Serenity Foundation of Texas comment that the phrase "in format provided by the Commission" is too restrictive for non-funded facilities and question the fiscal burden that non-funded providers will face to comply with this rule. They suggest adding "or via any reasonable alternative means" to the sentence. The Commission declines to make the suggested change and further responds that the intent of the rule is to ensure standardization of the terms and information being submitted. To accommodate concerns regarding the fiscal impact of compliance, the Commission will accept both electronic and hard copy submissions and has amended the new rule to reflect this.

§148.505(g). General Environment. Permian Basin MHMR; ASAP; Land Manor; Managed Care Center for Addictive/Other Disorders, Inc.; Amarillo Council on Alcoholism and Drug Abuse; Fort Bend Council on Family & Community Development, Inc.; The Right Step-Houston; and La Hacienda Treatment Center comment on this rule. One commenter feels requiring smoking areas be at least 15 feet from the building infringes on client rights and dignity and may not attract people to treatment. Others comment generally that 15 feet is too restrictive. One commenter states that its physical plant setup would require clients to stand in the street or on a neighbor's property to maintain compliance. Several commenters note the contradiction between §148.217(l) which prohibits clients from using tobacco products on site and this rule which establishes rules for smoking areas. The Commission disagrees that this rule infringes on client rights and dignity. The Commission also finds that reasonable restrictions on smoking will provide a more appropriate environment to a larger number of people and thereby increase participation in services. The Commission has revised §148.505(g) to address the identified discrepancy and has made minor amendments to the rule to allow greater flexibility regarding the location of smoking areas.

§148.507(c)(1)(2). General Documentation Requirements. As an alternative to the required electronic authentication, Brazos Valley Council on Alcohol and Substance Abuse suggests that service providers be permitted to maintain an in-house list of approved signatures and that counselors input their name and credentials into the Commission's Behavioral Health Integrated Provider System (BHIPS). The Commission disagrees. The suggested procedure would not be sufficient to authenticate electronic signatures or provide the required security regarding access. BHIPS has the necessary capability to authenticate electronic records, but it is a tool currently available only to Commission-funded agencies and therefore it is not specifically referenced in new 40 TEX. ADMIN. CODE. ch. 148. If a non-funded provider chooses to maintain electronic records, §148.507(c)(2) applies.

§148.508(h). Client Records. ASAP; Amarillo Council on Alcoholism and Drug Abuse; Fort Bend Council on Family & Community Development, Inc; Land Manor; TDCJ; The Right Step-Houston; and Serenity Foundation of Texas suggest changing the requirement for record retention from five to six years to be consistent with HIPAA regulations. The Commission agrees and has amended the rule.

§148.509(a),(b)(6), (b)(14). Incident Reporting. Brazos Valley Council on Alcohol and Substance Abuse comments on the current, not proposed rules by requesting the addition of the phrase "...directly related to an action or inaction by the facility..." to the rule regarding reporting medical and psychiatric emergencies. The commenter also suggests reporting illegal or unethical conduct only when it significantly impacts the clients. The Commission disagrees. In the new rules, medical and psychiatric emergencies are documented in an internal incident report and there is no longer a requirement to report said incidents to the Commission. Additionally, in the new rules, specifically §148.214, when a provider or its personnel have knowledge of an unethical conduct or practice on the part of a person or provider, they have a responsibility to report the conduct or practices to appropriate funding or regulatory bodies or to the public. The duty to report unethical conduct or practices is standard procedure for license holders and funding recipients. The Commission believes that including a caveat to the reporting requirements would dilute the duty to report and not ensure that unethical practices and conduct would be reported as required.

§148.509(b)(13), (c). Incident Reporting. ASAP; Land Manor; CiviGenics, Inc; Amarillo Council on Alcoholism and Drug Abuse; and Serenity Foundation of Texas comment that the incident report deadline for client suicide attempts should be within 24 hours of the facility becoming aware of the event. The Commission agrees and has revised §148.509(c) to include this requirement.

§148.601(b). Hiring Practices. The Right Step-Houston requests adding the Internet as a method for verifying credentials to this rule. The Commission agrees and has revised §148.601(b) to permit verification via the Internet.

§148.601(d). Hiring Practices. Land Manor; ASAP, Southwest Texas Regional Planning Commission; Gateway Foundation; Amarillo Council on Alcoholism and Drug Abuse; Alpha Home, TDCJ Jester Unit I; and Serenity Foundation of Texas comment regarding the length of time to receive a response to the criminal background check and the subsequent impact on the operation and staffing of the organizations. The commenters also mention these problems as a possible financial burden. Most commenters request keeping the wording in the current rules. In response to the expressed concerns, the Commission has made reasonable accommodations for the completion of criminal background checks. A facility may hire staff prior to receiving the results of a criminal background check. However, to protect the health and safety of clients, the new rule requires that staff not be allowed to have client contact until the background check is completed and assessed. The Commission has revised §148.601(d) accordingly.

§148.601(e). Hiring Practices. Shoreline, Inc. comments that newly hired employees should not have contact with clients until they have passed the urine drug screen. Also, new hires that test positive on the urine drug screen should be immediately terminated for cause. The Commission believes that it is important to receive the drug test results prior to employment and therefore declines to make the requested change.

§148.601(g). Hiring Practices. An individual commenter asks for a definition of "volunteer" under this provision. The Commission responds that the definition of "volunteer" under these rules follows the common usage of the term. For the purposes of §148.601(g), the term "volunteer" does not include volunteer speakers associated with 12 Step or similar programs.

§148.603(c). Training. La Hacienda Treatment Center and Sandstone question the intent and timeframe of the initial orientation provision. There are concerns regarding providing this orientation prior to performing duties and adding Commission rules and organization policies and procedures to the items that must be addressed. The commenters also inquire as to the removal of client abuse, neglect and exploitation topics from this section. The intent of this provision is to require that training address topics that employees need to know before they start performing their duties. The Commission feels that it is important for employees to understand Commission rules, which form the basis for policies and procedures and client health and safety guidelines. Organizational policies and procedures are similarly important and should be reviewed prior to performing job functions. Not knowing such information represents a risk management issue for the organization and a potential safety risk for the clients. The client abuse, neglect and exploitation training requirements remain, yet are incorporated by reference in Appendix A as set forth in §148.603(d)(1).

§148.603(d). Training. Land Manor; ASAP; Travis Co. Juvenile Probation; Southwest Texas Regional Planning Commission; Jefferson Co. Council on Alcohol and Drug Abuse; CiviGenics; Gateway Foundation; Amarillo Council on Alcoholism and Drug Abuse; Fort Bend Council on Alcohol and Drug Abuse; TDCJ; TAAP; Alpha Home, Volunteers of America; ARC of Bexar County; La Hacienda Treatment Center; Special Health Resources; Sandstone; Austin-Travis Co. MHMR; Texas Youth Commission; Serenity Foundation of Texas; and interested individuals express concerns relating to the time period for initial staff training to be completed. The comments state that the proposed timeframe of 30 days is unrealistic and would be burdensome to the facilities operationally and financially. Most commenters request that 90 days be given to complete the required initial trainings. One commenter feels that completing two hours of abuse, neglect and exploitation training within the first 30 days was sufficient with completion of the rest within the year. The Commission has revised the language of the new rule and returned the deadline for initial training to within 90 days of employment. The Commission has added a provision that employees cannot perform certain functions until they have received the appropriate training.

§148.603(d)(1). Training. The Right Step-Houston comments that eight hours of abuse, neglect and exploitation training is unnecessary and should not apply to all employees and suggests each full-time employee receive an initial training of eight hours and a three-hour refresher annually. The Commission disagrees. The abuse, neglect and exploitation training requirement is based on statutory requirements contained in TEX. HEALTH & SAFETY CODE ch. 161. The law requires TCADA, the Texas Department of Health and the Texas Department of Mental Health and Mental Retardation to agree and adopt standards for this training by rule. Appendix A of new Commission rules, 40 TEX. ADMIN. CODE ch.148, contains the agreement between these agencies. It sets out standards for training which include the requirement that staff receive eight hours of abuse and neglect training annually. The Commission has amended §148.603 to distinguish the training requirements for outpatient programs from that of residential programs. The required eight hours of training apply only to residential services. The Commission requires two hours of training for outpatient programs.

§148.603(d)(2). Training. Brazos Valley Council on Alcohol and Substance Abuse and Sabine Valley Center comment on current rule sections requiring direct care staff to complete four hours of training in Tuberculosis, HIV, Hepatitis B and C and Sexually Transmitted Diseases. They believe the training is excessive and should be changed to two hours of training. The Commission responds that the new rules for training in HIV, Hepatitis B and C, Tuberculosis and Sexually Transmitted Diseases require three hours of initial training and annual updates, which is reduced from the requirement of four hours in the current rules. The Commission believes the three hours of training are necessary to protect the health and safety of provider staff and service recipients.

§148.603(d)(3)(B). Training. Shoreline, Inc. suggests the addition of language regarding licensed health professionals being exempt from CPR and first aid certification, if emergency resuscitation equipment and trained response teams are available 24 hours a day. The commenter believes that licensed health professionals, i.e. RNs and LVNs, should be exempt from maintaining current First Aid certification under the condition that the licensed health professional has maintained recent uninterrupted employment in a health care facility where first aid skills are utilized (i.e. hospital, long term care, adolescent or adult residential facility) for at least two years. The Commission believes that providers should maintain current CPR and first aid certification regardless of place of employment. However, as reflected in the new rules, if emergency resuscitation equipment and trained response teams are available 24 hours a day, licensed health professionals and personnel in medical facilities are exempt from this requirement.

§148.603(d)(4). Training. Avenues Counseling Center comments that requiring formally trained instructors to conduct non-violent crisis intervention training is unrealistic as formally trained instructors are scarce. The Commission acknowledges that finding formally trained instructors may be difficult; however, this training is important to the client health and safety and the risk management of the facility. Because of the nature of the training, it must be provided by trained, competent individuals. Therefore, the Commission declines to amend the rule.

§148.603(d)(6). Training. Brazos Valley Council on Alcohol and Substance Abuse; Sabine Valley Center; ASAP; Southeast Regional Planning Commission; CiviGenics; Gateway Foundation; Amarillo Council on Alcoholism and Substance Abuse; Riverside General Hospital; Right Step-Houston; La Hacienda, Volunteers of America; Avenues Counseling Center; Memorial Hermann Hospital; Austin-Travis Co. MHMR; TDCJ Jester Unit I; Serenity Foundation of Texas; and the Texas Youth Commission comment regarding the eight hours of required intake and screening training. Suggestions range from an initial eight hour training with shorter annual follow-up trainings to a total reduction in the duration of intake and screening training. Additional suggestions are to exempt or require different levels of training depending on staff duties or credentials and to include a separate requirement for mental health diagnosis training. The Commission disagrees. The eight hours of training in intake and screening is a requirement outlined in TEX. HEALTH & SAFETY CODE §462.025. The Commission is unable to change rules that are based on statutory requirements. The statute does not set forth any exemptions from this training requirement. Additionally, the new rules include two hours of training in DSM diagnostic criteria for substance-related disorders and other mental health diagnoses as part of the intake, screening and admission authorization training.

§148.603(d)(7)(A). Training. Jefferson County Council on Alcohol and Drug Abuse comments that self administration of medication training should be taken at least annually rather than as two hours of initial, one-time training. The Commission disagrees. The rules are minimum requirements and a facility may choose to provide more training than is required based on staff proficiencies and client needs.

§148.603(d)(8). Training. Jefferson Co. Council on Alcohol and Drug Abuse; Riverside General Hospital; Right Step-Houston; La Hacienda; Avenues Counseling Center; Special Health Resources; and interested individuals comment that the proposed adolescent training for staff is too excessive and all necessary information could be provided within a shorter timeframe without affecting quality of care. A commenter also asks whether the adolescent training requirement in §148.603(d)(8) includes prevention and intervention programs. One commenter states that the hours are difficult to complete when on-the-job training is not accepted. The Commission has moved the adolescent training provision from this section of the rules to the adolescent treatment section, §148.905(d)(3), and required that the facility have a process in place that ensures that all staff are trained and competent to work in that area. This should also clarify that the adolescent training requirement is intended to apply only to treatment programs serving adolescents.

§148.603(d)(9)(A). Training. ASAP, La Hacienda, Austin-Travis Co. MHMR, and Serenity Foundation of Texas comment that four hours of detoxification training for staff is excessive. Commenters recommend changing the requirement to reflect a minimum of two hours for the detoxification training, particularly for those with a medical or nursing background. The Commission responds by moving the detoxification training provision from this section of the rules to the detoxification treatment section, §148.902(f), and requiring that the facility have a process in place that ensures that all staff are trained and competent to work in that area.

§148.603(d)(10). Training. Volunteers of America asks for clarification on how staff and program administrators shall demonstrate expertise in addressing the needs of women and children. The Commission has moved the women and children's training provision from this section of the rules to the women and children's treatment section, §148.910, which now requires that the facility have a process in place that ensures that all staff are trained and competent to work in that area. Expertise may be demonstrated by showing that staff are adequately trained or skilled to ensure competence and thereby protect clients.

§148.703(b), (c), (f). Abuse, Neglect, and Exploitation. Gateway Foundation, Inc.; Shoreline, Inc; Land Manor; Gateway Foundation, Inc; ASAP; La Hacienda Treatment Center; Austin Travis County MHMR; Serenity Foundation of Texas; TAAP; and the Texas Youth Commission comment that the references in these sections to the chief executive officer (CEO) being required to perform all of the functions for reporting abuse, neglect or exploitation should include the phrase "or designee." The Commission agrees and has revised the text for §148.703(b), (c) and (f) to include this alternative.

§148.703(e). Abuse, Neglect, and Exploitation. Gateway Foundation, Inc.; Shoreline, Inc; Land Manor; Gateway Foundation, Inc; ASAP; La Hacienda Treatment Center; Austin Travis County MHMR; Serenity Foundation of Texas; TAAP; and the Texas Youth Commission comment that this section should include the phrase "or designee." The Commission disagrees and therefore will not change §148.703(e) to include a designee. Requiring a report be made to the CEO protects clients and participants.

§148.703(g). Abuse, Neglect, and Exploitation. Montrose Counseling Center expresses concerns regarding the notification of the consenter when the consenter is the alleged abuser. The Commission agrees and has revised §148.703(g) to address this concern.

§148.706(a). Restraint and Seclusion. Land Manor, ASAP, and Serenity Foundation of Texas comment that adolescent residential programs should not be required to authorize the use of personal restraint, but detoxification programs should. The Commission disagrees. The current rules require adolescent residential programs to authorize the use of personal restraint. Adolescent residential populations tend to require greater levels of external guidance and, at times, behavioral control to ensure a safe environment is maintained. Detoxification programs may authorize personal restraint but the decision to do so depends on the client population served, acuity of clients and an evaluation by the clinical director and/or physician as to the necessity for such behavioral controls.

§148.708(b). Searches. TDCJ comments that searches should protect the health, safety and welfare of staff and facility, as well as clients. The Commission agrees and has revised the rule accordingly.

§148.708(e). Searches. TDCJ comments that the new rule requires same-sex searches. TDCJ policy allows for female correctional officers to search male inmates. The Commission believes that same gender searches are required to protect the health and safety of clients as well as to preserve the dignity of clients. It therefore declines to permit the proposed alternative.

§148.708(f). Searches. Land Manor, ASAP, Serenity Foundation of Texas, CiviGenics, and Gateway Foundation, Inc. comment that the documentation of all client searches in the client records is excessive. Instead, they suggest documenting routine searches of possessions such as purses and bags in a central log (for example, when a client returns from a pass) and documenting the more thorough, incident-based client searches in the client record. The Commission agrees and has revised §148.708(f) accordingly.

§148.801(a). Screening. Sundown Ranch; La Hacienda Treatment Center; Brazos Valley Council on Alcohol and Drug Abuse; and other interested individuals comment on this rule. One commenter asks if an American Society of Addiction Medicine certified child and adolescent psychiatrist and/or physician who also is on staff with the admitting facility determines diagnosis and refers an admission to that facility for treatment, would it still be necessary to conduct an additional screening on that admission? Another commenter references §148.422 of the current rules, regarding collecting information about the client's financial resources and insurance benefits. Other comments concern the use of the phrase "validated screening instrument." The Commission responds that if a qualified staff member meets with the prospective client, determines a diagnosis and type of services required, and authorizes admission according to the rules, no "additional" screening is required. Section 148.801(a) includes a requirement that an assessment of the client's financial resources and insurance benefits be conducted. The phrase "validated screening instrument" has been replaced with "screening process" in §148.801(a).

§148.801(e). Screening. Permian Basin MHMR; ASAP; CiviGenics; Serenity Foundation of Texas; Managed Care Center for Addictive/Other Disorders, Inc; Land Manor; The Right Step-Houston; and Memorial Hermann Prevention and Recovery Center request LVNs be allowed to screen admissions to a detoxification program. The Commission agrees and has revised §148.801(e) to permit LVNs to perform screening under certain conditions.

§148.802(a). Admission Authorization and Consent to Treatment. ASAP; CiviGenics; Land Manor; Serenity Foundation of Texas; Gateway Foundation; Amarillo Council on Alcoholism and Drug Abuse; Volunteers of America; Avenues Counseling Center; Austin Travis County MHMR; and the Texas Youth Commission comment that the face-to-face meeting with a QCC requirement is too restrictive and is not necessary. The Commission agrees and has revised §148.802(a) to eliminate this requirement.

§148.802(b)(8). Admission Authorization and Consent to Treatment. Alcoholic Rehabilitation Center of Bexar County objects to the requirement that the client be given the name of the primary counselor at admission, suggesting that the primary counselor designation would best take place in the first three individual service days after admission. The Commission declines to make this change to the new rule. The new rule reflects no change from the current rule. Giving the client the name of their primary counselor as soon as they are admitted into the program allows the client to have a single point of contact should they have therapeutic or clinical issues they need addressed. The assignment of a primary counselor may change as needed, but the client must be provided the name of their counselor upon admission.

§148.802(b)(14). Admission Authorization and Consent to Treatment. Brazos Valley Council for Alcohol and Substance Abuse references the current rule regarding assessment of the client's financial resources. The commenter states that many insured clients have disaster insurance with very high deductibles and co-pays. These individuals "fall through the cracks." The Commission has revised §148.802(b)(14) in response to include an evaluation of the client's insurance benefits to determine estimated daily charges. Additionally, §148.801(a) requires that the provider consider a person's financial resources and insurance benefits when screening that person to determine admission eligibility.

§148.802(g). Admission Authorization and Consent to Treatment. La Hacienda Treatment Center requests clarification of this rule. The commenter states that there are many potential clients who contact programs to inquire about admission who do not meet the programs' financial eligibility criteria. They are given appropriate referral options, and the process is documented, but they may never actually be screened by a QCC. The new rule would apply to those clients who actually complete the screening process and are determined inappropriate for admission. The Commission has revised §148.802(g) to clarify the rule.

§148.803(a). Assessment. South Texas Council on Alcohol and Drug Abuse (STCADA); Permian Basin MHMR; Land Manor; ASAP Workgroup; CiviGenics, Inc.; Gateway Foundation; Managed Care Center for Addictive/Other Disorders, Inc.; Amarillo Council; Riverside General Hospital; Fort Bend Council on Family & Community Development, Inc.; Association of Substance Abuse Service Providers (ASAP) ; Texas Department of Criminal Justice; The Right Step-Houston; Volunteers of America Texas, Inc.; Avenues Counseling Center; Texas Youth Commission; Austin Travis County MHMR; Sandstone Health Care, Inc.; Brazos Valley Council of Alcohol and Drug Abuse; and other interested individuals request that counselor interns be allowed to conduct initial assessments. One commenter spoke of family assessments and family service plans which are not addressed in the new rules. The Commission agrees that counselor interns may perform this function provided they have the required training and supervision. To clarify, it has revised §148.803(a).

§148.803(a)(4). Assessment. La Hacienda Treatment Center requests that medical history and current health status be exempted from the initial assessment if a history and physical, completed by a physician at admission, is in the client record. The Commission responds that if such a history and physical are documented in the client record within the required time frame for the assessment (three individual service days of admission), this will meet the intent of the rule.

§148.803(a)(4). Assessment. La Hacienda Treatment Center comments that the inclusion of HIV information in the client record is a violation of client rights and in direct conflict with their interpretation of the law. The Commission has revised §148.803(a)(4) in response.

§148.803(a)(6). Assessment. La Hacienda Treatment Center requests that leisure activities be exempted from the initial assessment if a Certified Therapeutic Recreational Specialist (CTRS) has completed a leisure activities assessment. The Commission responds that a CTRS assessment may be used to meet the requirement in the rule if done by a QCC. If not, a QCC must still review the information in the assessment with the client.

§148.803(c). Assessment. Austin Travis County MHMR questions the requirement for Axes II and III diagnoses if not all QCC's are able to give them. The Commission responds that while a QCC's license may limit his or her scope of practice in terms of generating diagnoses, the intent of the rule was to encourage an understanding of the client's problems and needs that is as complete as possible given the scope of practice under which the QCC operates.

§148.804(a). Treatment Planning, Implementation and Review. Jefferson County Council on Alcohol and Drug Abuse; and La Hacienda Treatment Center comment on the language of this rule. One commenter requests that the Commission check the wording in this subsection. Another commenter felt some of the language of the rule was redundant, inconsistent, and unnecessary and should be removed. The Commission responds that the wording appears appropriate. The intent of the rule is to ensure that treatment plans will be developed and implemented with the client's involvement, will involve the family when appropriate, and address issues identified in the assessment.

§148.804(c). Treatment Planning, Implementation and Review. An interested individual requests that the rule be more specific regarding initial plans for discharge in the treatment plan, perhaps including or addressing Texas Department of Insurance (TDI) discharge criteria. The Commission responds that the wording of the new rules has been clarified regarding the distinction between discharge criteria and discharge planning. Sections 148.804(c) and 148.805(a) have been revised in response.

§148.804(d). Treatment Planning, Implementation and Review. La Hacienda Treatment Center comments that the projected length of stay should be placed in the assessment rather than the treatment plan. The Commission declines to make this change since the projected length of stay is based on best estimates as to how long it will take the client to accomplish identified goals, objectives, and other discharge criteria that are not addressed in the assessment. However, a projected length of stay may be included in the assessment, subject to later revision in the treatment plan.

§148.804(f). Treatment Planning, Implementation and Review. Land Manor; Shoreline, Inc.; Alcoholic Rehabilitation Center; CiviGenics, Inc.; Gateway Foundation; Riverside General Hospital; Managed Care Center for Addictive/Other Disorders, Inc.; Fort Bend Council on Family & Community Development, Inc.; Association of Substance Abuse Service Providers (ASAP); Texas Department of Criminal Justice; Alpha Home, Inc.; The Right Step-Houston; Volunteers of America Texas, Inc.; Alcoholic Rehabilitation Center of Bexar County; La Hacienda Treatment Center; Austin Recovery; Avenues Counseling Center; Memorial Hermann Prevention and Recovery Center; Serenity Foundation of Texas; Texas Youth Commission; Austin Travis County MHMR; Sandstone Health Care, Inc.; and other interested individuals request that the treatment plan be completed and filed in the client record within five individual service days rather than the proposed three days. The Commission agrees and has revised §148.804(f) to require the plan be completed within five days.

§148.804(g-j). Treatment Planning, Implementation and Review. La Hacienda Treatment Center, Land Manor; Shoreline, Inc.; Alcoholic Rehabilitation Center; CiviGenics, Inc.; Gateway Foundation; Amarillo Council; Managed Care Center for Addictive/Other Disorders, Inc.; Fort Bend Council on Family & Community Development, Inc.; ASAP; Avenues Counseling Center; Texas Department of Criminal Justice; Serenity Foundation of Texas; Texas Youth Commission; Austin Travis County MHMR; Sandstone Health Care, Inc., and an interested individual note conflicting statements regarding requirements for treatment plan reviews, in that §148.804(g) states the treatment plan shall be evaluated on a regular basis, and §148.804(h) specifies timelines, which are felt to be too restrictive. It is also suggested that §148.804(g) might be interpreted as a requirement separate and apart from §148.804(h), (i) and (j). The Commission responds that §§148.804(g)(h)(i) and (j) all refer to the treatment plan review process and §148.804(h) has been amended to clarify expectations.

§148.804(k). Treatment Planning, Implementation and Review. La Hacienda Treatment Center requests that this rule not apply when a client changes the level of care within the same program site. The Commission responds that a change in the level of care involves different interventions from the provider and assumptions that client needs are such that the previous level of care is no longer either needed or sufficient. A documented treatment plan review is required in this situation even if the client remains at the same program site.

§148.804(l)(1)(2). Treatment Planning, Implementation and Review. La Hacienda Treatment Center states that the new rules require that individual counseling notes include the goals addressed, whereas the previous rules include the problems addressed. The commenter believes this change would require significant changes in established documentation practices, and that including problems addressed is more consistent with established clinical documentation practices. The Commission responds that the previous rules require that all progress notes include the goals addressed. The new rules require that only individual counseling notes include the goals addressed which is less burdensome than the previous rule. The Commission believes it is necessary for individual notes to address the goals in the treatment plan, which serve to help target solutions to the problems identified. A provider may set forth a projected length of stay in its assessment document, however, it must also be contained in the treatment plan and be subject to change as the treatment plan and the client's progress is reviewed.

§148.804(l)(1). Treatment Planning, Implementation and Review. ASAP; Land Manor; and TDCJ comment on this rule. One commenter is concerned that the requirements of BHIPS are excessive. There is also a comment that requiring documentation of all treatment services is ill-suited to the therapeutic community model. The Commission responds that use of BHIPS is only required for funded providers and its use is not addressed in this rule. Rules specific to therapeutic communities are contained in §148.1401 which sets forth specific requirements for that modality.

§148.805(a). Discharge. An interested individual suggests leaving in the wording that requires discharge plans to be completed prior to discharge. The Commission responds that this is addressed in §148.805(e).

§148.805(j). Discharge. An interested individual suggests follow-up contacts be made no sooner than 60 days after discharge. The Commission agrees and has amended the discharge provisions accordingly.

§148.901(b). Requirements Applicable to All Treatment Services. Turning Point; Land Manor; ASAP; CiviGenics; Gateway Foundation, Inc; TDCJ; Avenues Counseling Center; Jefferson Co. COADA; Austin Travis Co. MHMR; Serenity Foundation of Texas, and two interested individuals comment that group size restrictions do not allow for appropriate clinical interventions as utilized in accepted treatment methodologies and as required by certain correctional setting space limitations. The Commission disagrees with the commenters regarding group size limitations. This rule specifically addresses limiting the group sizes for counseling groups and educational/life skills groups. The Commission believes it is clinically sound to limit the group sizes to ensure there is adequate opportunity for clinicians to intervene as necessary. Large groups of clients do not allow for appropriate clinical interaction. These restrictions do not interfere with treatment modalities that use encounter groups and community groups as they do not apply to that type of group setting.

§148.901(h). Requirements Applicable to All Treatment Services. An interested individual recommends including wording in this rule that individuals taking methadone must be admitted to a program. The Commission declines to make this change because an individual taking methadone, which is a prescribed medication, is covered under the rule as written.

§148.901(n). Requirements Applicable to All Treatment Services. CiviGenics comments that in correctional settings, some clients are required to work early morning shifts and then make up the sleep time missed before attending treatment thereby denying the client eight continuous hours of sleep. The commenter suggests revising wording to "clients have an opportunity for sleep daily." The Commission declines to make this change as it believes that requiring eight hours of uninterrupted sleep is in the best interest of the client and increases the likelihood of successful treatment outcomes.

148.901(p). Requirements Applicable to All Treatment Services. Land Manor requests an interpretation of this section regarding specialized education and expertise for teaching chemical dependency education groups and asks how this impacts counselor interns. The Commission responds that counselor interns are no different from other individuals conducting the educational and life skills training in that they must have specialized education and required expertise in the subject matter being taught.

§148.901(r). Requirements Applicable to All Treatment Services. Austin Travis Co. MHMR and an interested individual comment that the rule requiring that qualified mental health professionals obtain work experience under the supervision of an LCDC creates an adversarial relationship and is too restrictive. The Commission responds that it has deleted this section.

§148.902. Requirements Applicable to Detoxification Services. TDCJ comments that stated tasks are now significantly detailed. These new specifications will have a fiscal impact on the vendors. Recommendations for specific changes were not included in the comment. The Commission responds that it has clarified the duties and responsibilities of staff working in detoxification programs, setting forth what services are to be provided and by whom. The Commission believes that the rules represent the best practice standards for treatment of clients receiving detoxification services. Fiscal impact will vary depending on the services currently being provided.

§148.902(e). Requirements Applicable to Detoxification Services. ASAP, La Hacienda Treatment Center, Austin-Travis County MHMR, and Serenity Foundation of Texas comment that four hours of detoxification training for staff is excessive. Comments recommend changing the requirement to a minimum of two hours for the detoxification training, particularly for those with a medical or nursing background. The Commission has moved the detoxification training provision from §148.603(d)(9)(A) of the rules to the detoxification treatment section, §148.902(f) of the rules to address this issue. The new rule now requires that the facility have a process in place that ensures that all staff are trained and competent to work in that area.

§148.902(e). Requirements Applicable to Detoxification Services. The Right Step-Houston commented that this rule is too restrictive and suggests that a licensed health professional should be able to authorize detoxification admissions as well as a certified addictions registered nurse or registered nurse with at least two years experience. The Commission disagrees. Commission staff have researched the scope and limitations of medical licenses to determine what practices fall under the different medical licenses. This rule is based on that research.

§148.902(e)(6). Requirements Applicable to Detoxification Services. Land Manor comments that addition of this section was not approved by the Commission for publication in the Texas Register. The Commission responds that the provisions in §148.902(e)(6) were given to the Commissioners prior to the August 12, 2003, open meeting. The proposed rules, including this section, were approved by the Commissioners for posting in the Texas Register. The provisions were published in the Texas Register as required by law on August 29, 2003.

§148.902(g)(5). Requirements Applicable to Detoxification Services. Turning Point expresses a concern that medical staff cannot perform the individual counseling session with the client in detoxification services. The Commission has revised what is now §148.902(h)(5) to permit a registered nurse to provide this service as well.

§148.903(b). Requirements Applicable to Intensive Residential and Day Treatment Services. Land Manor, TDCJ, and Austin Travis Co. MHMR comment that ensuring access to the entire continuum of care may place an unrealistic burden on the program. The Commission responds that the intent of the rule is to ensure that providers identify appropriate services and provide information and assistance needed to access them. It does not require that the services be directly provided.

§148.903(d). Requirements Applicable to Intensive Residential and Day Treatment Services. Phoenix House, Serving Children and Adolescents in Need, Inc; Land Manor; Shoreline; Alcoholic Rehabilitation Center; Travis Co. Juvenile Probation; Alcohol & Drug Abuse Council-Concho Valley; Cenikor; Austin Recovery; CiviGenics; Gateway Foundation, Inc; Riverside General Hospital; ASAP; TDCJ; The Right Step; ARC of Bexar County; Volunteers of America; Avenues Counseling Center; Austin Travis Co. MHMR; Texas Youth Commission, and several interested individuals disagree with the increase in service hours to 30 per week, which must include two individual sessions, for Intensive Residential services. It is anticipated that the increased service hours will create a financial burden, require hiring additional staff, and increase the workload for counselors. Requiring two individual sessions per week also increases the workload for counselors and will require hiring additional staff. The commenters suggest leaving the 20-hour requirement as is. The Commission responds by revising the rule to address the commenters' concerns. Specifically, the Commission has reduced the requirement to one individual counseling session per week and expanded the number of activities that will count toward the 30 hour requirement set forth in §148.903(d).

§148.903(g). Requirements Applicable to Intensive Residential and Day Treatment Services. Phoenix House, Serving Children and Adolescents in Need, Inc; Land Manor; Shoreline; Alcoholic Rehabilitation Center; Travis Co. Juvenile Probation; Alcohol & Drug Abuse Council-Concho Valley; Cenikor; Austin Recovery; CiviGenics; Gateway Foundation, Inc.; Riverside General Hospital; ASAP; TDCJ; The Right Step; ARC of Bexar County; Volunteers of America; Avenues Counseling Center; Austin Travis Co. MHMR; Texas Youth Commission; and several interested individuals disagree with the increase in service hours for supportive residential, because it is expected to create a financial burden, require the hiring of additional staff, and increase the workload for counselors. The Commission has reduced the number of service hours in §148.903(g) in response to this concern.

§148.903(h). Requirements Applicable to Intensive Residential and Day Treatment Services. TDCJ comments that the proposed staff ratios are cost prohibitive and recommends maintaining the current rule. The Commission responds that the new staff-to-client ratios in supportive residential services are the same as current level III and IV ratios. The Commission believes that the ratio helps ensure staff are available to supervise clients and protect their health and safety and that the ratio represents sound clinical practice, increasing the likelihood of positive treatment outcomes.

§148.903(i). Requirements Applicable to Intensive Residential and Day Treatment Services. ASAP; Land Manor; CiviGenics; Gateway Foundation, Inc; TDCJ; Alpha Home, Inc; and Serenity Foundation of Texas comment that the proposed rule does not allow for methodological differences in program design. They recommend deleting caseload restrictions in adult supportive residential programs and returning to current rules allowing programs to justify and set their own caseload limits. They believe the new rule places unnecessary financial burden on programs. One commenter believes supportive residential specialized female programs should limit caseloads to ten clients per counselor. The Commission agrees and will allow programs to set their own limits on caseload sizes and has revised §148.903(i) as a result.

Additionally, the Commission has renamed and revised §148.903 to read Requirements Applicable to Residential Treatment Services to clarify that this section of the rules applies to both intensive and supportive residential. It has also moved references to day treatment to §148.905 relating to Additional Requirements for Adolescent Programs to set out requirements for this type of service and to clarify when attendance in school can and cannot be counted toward service hour requirements.

§148.904. Requirements for Outpatient Treatment Programs. La Hacienda Treatment Center and an interested individual suggest establishing a minimum number of hours and maximum caseload size for outpatient programs. They are concerned that facilities will only offer "bare bones" treatment at the expense of their clients. They believe there should be a distinction between outpatient and intensive outpatient services. They ask what distinguishes outpatient programs from private practice. The Commission responds that minimum hours are not specified to allow facilities to provide individualized treatment based on client needs. Private practice and chemical dependency treatment are defined in 40 TEX. ADMIN. CODE §141.101 and provide the basis for differentiating between outpatient programs and private practice.

Additionally, La Hacienda requested that the Commission replace the term 'residential' with 'inpatient' throughout its rules. The Commission declines to make this change as the term inpatient carries with it certain medical connotations and block grant restrictions that may not be appropriate for services in residential chemical dependency treatment facilities. However, this choice of this term should not be construed to imply a lower level of service.

§148.904(b). Requirements for Outpatient Treatment Programs. ASAP; Land Manor; and Serenity Foundation of Texas comment that requiring facilities to ensure access to the full continuum of care is unrealistic. The Commission responds that facilities will not be expected to provide a full continuum of care. The intent of the rule is to ensure that providers identify appropriate services and provide information and assistance needed to access them.

§148.905(a)(4). Additional Requirements for Adolescent Programs. Phoenix House - Austin and La Hacienda Treatment Center comment that fifteen hours of additional planned, structured activities in addition to the required treatment services are too much for adolescents. The Commission has revised §148.903 regarding requirements for residential services and §148.905 regarding additional requirements for adolescent programs to clarify the number of hours required for residential versus day treatment for adolescents as well as additional hours for planned structured activities. Additionally, it has added a provision to allow residential programs to count attendance in school toward meeting the requirements for additional hours of planned, structured activities.

§148.905(c)(3). Additional Requirements for Adolescent Programs. Jefferson Co. Council on Alcohol and Drug Abuse; Riverside General Hospital; Right Step-Houston; La Hacienda; Avenues Counseling Center; Special Health Resources for Texas; and interested individuals comment that the proposed adolescent training for staff is too excessive and all necessary information could be provided within a shorter timeframe without affecting quality of care. A commenter also asks whether the adolescent training requirement in §148.603(d)(8) includes prevention and intervention programs. One commenter stated that the hours were difficult to complete when on-the-job training is not accepted. The Commission responds by moving the language of proposed §148.603(d)(8) training requirement to the §148.905(d)(3) (adolescent treatment), which applies to treatment facilities, not prevention programs. It now requires that facilities develop and implement a mechanism to ensure that staff are proficient in adolescent services instead of specifying the hours of training required.

§148.906(c). Access to Services for COPSD Clients. ASAP; Land Manor; Serenity Foundation of Texas; and Austin Travis Co. MHMR comment that the requirement for facilities to ensure continuity of services may place an unrealistic burden on the program. The commenters recommend replacing the word "ensure" with "facilitate." The Commission disagrees. The Commission believes that it is realistic to require providers to establish and implement procedures to ensure continuity of the treatment process within the program. The word change suggested would not clarify the rule.

§148.908. Specialty Competencies of Staff Providing Services to Clients with COPSD. Shoreline, Inc. asks if both TCADA and TDPRS licenses are required in COPSD programs. The Commission is unclear what the commenter is asking. No TDPRS licensure is required for treatment facilities. TCADA and TDMHMR purchase COPSD services. A TCADA license is required for any facility providing chemical dependency treatment services, regardless of any additional services offered.

§148.909. Screening, Assessment, and Treatment Planning of Services to Clients with COPSD. Avenues Counseling Center suggests changing the title of this section to better reflect its contents. The Commission agrees and has revised the title of §148.909 to delete "Screening, Assessment, and." The new title will read "Treatment Planning of Services to Clients with COPSD."

§148.910(d). Treatment Services for Women and Children. Volunteers of America asks for clarification on how staff and program administrators shall demonstrate expertise in addressing the needs of women and children. The Commission has moved the women and children's training provision from §148.603(d)(10), to the women and children's treatment section (§148.910) of the rules to address this issue stating that the organization must have a process in place that ensures all direct care staff have appropriate competencies to provide services to women and children.

§148.911. Treatment Services Provided by Electronic Means. A commenter from Alcohol and Drug Educational Services comments that she is strongly opposed to treatment via the Internet and believes it is not ethical, moral, or beneficial to the client. The Commission responds that, in proposing rules to address the provision of services via the Internet, the Commission establishes a required level of compliance for entities that decide to engage in this type of treatment. There are entities in other states that are providing treatment services via electronic means and the Commission seeks to establish guidelines for those engaging in this practice in Texas.

§148.1002(b). Medication Storage. Managed Care Center for Addictive/Other Disorders, Inc. comments that allowing clients to keep their medications with them risks abuse by the client and/or theft by other clients. The Commission responds that this rule is intended to allow clients, with the approval of the program director, to keep medications (such as insulin, asthma inhalers, and nitroglycerine) with them to use as needed. The program director should assess the risk associated with letting a particular client keep medications before granting approval to do so.

§148.1002(e). Medication Storage. Land Manor comments that sample medications provided by a physician are not labeled by a pharmacy. The Commission responds that sample medications provided by physicians must be stored with client specific labeling information, including dosing instructions.

§148.1003(b). Medication Inventory and Disposal. Shoreline, Inc. asks if this rule means daily inventory and inspection of drugs that do not fall under controlled substance categories are no longer necessary? The Commission responds that the commenter is correct. Daily inventories of medications are required only for the Schedule II, III, and IV drugs. Section 148.1003(a) requires the program to be responsible for developing "an effective system to track and account for" all other prescription medications.

§148.1004(c). Administration of Medication. An interested individual comments that the new rule needs to stipulate that adolescent residential programs cannot allow self administration of medication. The Commission disagrees. The self-administration rule does not allow the adolescent client to take medications unsupervised or in a way other than prescribed. Each dose taken and each dose missed must be clearly documented.

§148.1205(b). Space, Furniture and Supplies. An interested individual requests that square footage requirements for infants and toddlers be included in the new rules as they are in the current rules. The Commission has revised §148.1205(b) to include this requirement.

§148.1205(f). Space, Furniture and Supplies. TDCJ comments that since TDCJ facility requirements differ from this rule, retaining the previous language in §148.412 regarding exemptions from these requirements for TDCJ correctional facilities is recommended. The Commission responds that the requirements are necessary to protect the health and safety of clients as well as to preserve the dignity of clients served in treatment facilities. As a result, it declines to modify these requirements. Additionally, the Commission has deleted the previous §148.412 language regarding correctional facilities and replaced it with a section regarding requirements for therapeutic communities which is now §148.1401 under the new rules. Correctional facilities located in TDCJ facilities are statutorily exempt from licensure by the Commission, and thus are not subject to Commission rules that apply to licensed facilities.

§148.1207(a), (d), (f), (h). Other Physical Plant Requirements. TDCJ comments that since its facility requirements differ from this rule, retaining the current language in §148.412 is recommended. The Commission responds that the requirements regarding temperature control, bedroom and bathroom window coverings, toilet, sinks and tubs/showers are designed to protect the health and safety of clients as well as to preserve the dignity of clients served in treatment facilities. As a result, it declines to modify these requirements.

§148.1401. Correctional Facilities. Phoenix House of Dallas; ASAP; Serenity Foundation of TX; 28 comments from Gateway Foundation, Inc.; CiviGenics; Land Manor; TDCJ; TAAP; and Volunteers of America express concerns with this subchapter of the rules. Issues of concern are the increased costs associated with the reduction in caseload sizes, increased service hours and increased work requirements that will result in the need for increased staffing. In addition, those commenting do not believe that it is necessary to increase service delivery requirements, especially while attempting to simultaneously decrease counselor-client caseload ratios. Decreasing counselor-client caseload sizes is not fiscally feasible and is much more labor intensive. It does not allow for any methodological differences in program design. The commenters also suggest that the Commission delete proposed caseloads of 20 per counselor for supportive residential programs and leave as it exists in current §148.403(c). Those commenting believe that the group size restrictions do not allow for appropriate clinical interventions utilized in accepted research-based treatment modalities. Those commenting also recommend that the Commission delete adult supportive residential services as proposed and consider a modification to existing levels III and IV requiring both direct and indirect structured activities according to program design. The Commission agrees that it should establish rules relating to therapeutic communities. These rules will apply to non-institutional facilities that are not directly operated by the state. Institutional facilities that are directly operated by the state are exempt from Commission license requirements by statute. Services provided in TDCJ institutions fall within this exception. Substance abuse services provided by community corrections facilities as defined by TEX. GOV'T CODE, ch. 509 (Vernon 1998), that are subject to the rules and standards adopted by the Texas Board of Criminal Justice are also not required to hold a Commission license. The rules regarding therapeutic communities are in §148.1401.

§148.1502. Exemption for Faith-Based Programs. Reyes Law Firm expresses concern that faith-based rules are being repealed. The Commission responds that this revision is made to improve the organization of the rules. The repeal removes the current freestanding chapter (former 40 TEX. ADMIN. CODE ch. 145) of faith-based exemption rules and transfers the text to the new rules as Subchapter O of 40 TEX. ADMIN. CODE ch. 148 (§148.1501-1506).

All comments, including any not specifically referenced herein, were fully considered by the Commission. In adopting 40 TEX. ADMIN. CODE ch. 148, the Commission makes other grammatical and non-substantive changes for the purpose of clarifying its intent.

Subchapter A. DEFINITIONS