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Chapter 141. GENERAL PROVISIONS

The Texas Commission on Alcohol and Drug Abuse (Commission) adopts new Chapter 141, §§141.101, 141.201-141.205, 141.301, 141.302, 141.401, and 141.501-141.503 concerning General Provisions, with changes to the text that was published in the August 29, 2003, Texas Register (28 TexReg 7210).

The new Chapter 141 has been reorganized to provide a more functional and logical framework. It includes definitions that will apply to 40 TAC Chapters 141, 142, 144, 147, 148, 150, and 153. Many of the definitions have been rewritten for clarity and to more accurately reflect current usage. New definitions were added as appropriate due to changes in other proposed rules.

The new rules contain general provisions relating to the general operations of the Commission. These provisions include language relating to contract claims, procurement, public comment, approval authority, and training and education of employees. Language regarding advisory committees has not been carried forward from the previous rules. Provisions of former 40 TAC Chapter 146 (relating to Interagency Agreements) are now included in new Chapter 141 as Subchapter D. No significant changes were made to former §§141.31, 141.51-141.54, 141.61, 141.62, and 141.71, which deal with claims against the Commission. However, these sections have been renumbered.

Changes have been made to §141.101 as proposed. The definitions of brief intervention, licensed health professional, and nurse practitioner have been clarified. In addition, as a result of public comment, the definition of counselor has been revised to include counselor interns and graduates and the 1000 hours of work experience are no longer required for the non-LCDC licensees listed in the definition of qualified credentialed counselor. In adopting §§141.101-141.503, 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 141 was approved for adoption during that meeting.

The Commission received comments on the proposed rules from Amarillo Council on Alcoholism and Drug Abuse (Amarillo Council); The Association of Substance Abuse Programs (ASAP); Austin Travis County MHMR; Avenues Counseling Center; CiviGenics; Gateway Foundation; Land Manor; Permian Basin MHMR; Serenity Foundation of Texas; Southeast Texas Regional Planning Commission; Sundown Ranch; Texas Association of Addiction Professionals (TAAP); Texas Department of Criminal Justice (TDCJ); and various individual commenters. The specific comments received and the Commission's responses appear below in rule number order.

§141.101. Definitions. (16) Behavioral Health Integrated Provider System (BHIPS). The Amarillo Council comments that the definition of BHIPS should be expanded to include licensure reporting. The Commission responds that BHIPS is only used by funded providers and the new rules do not address BHIPS functionality. While expanding BHIPS functionality may be useful for certain providers, such expansion should be carefully planned and coordinated with affected entities. Such activities are beyond the scope of this rulemaking.

§141.101. Definitions. (39) Counselor and (98) Qualified Credentialed Counselor (QCC). Sundown Ranch, Southeast Texas Regional Planning Commission, CiviGenics, Gateway Foundation, Amarillo Council, ASAP, Avenues Counseling Center, Serenity Foundation of Texas and Austin Travis County MHMR have submitted various comments regarding these definitions. In addition to QCCs, the current rules include counselor interns and graduates in the definition of counselor, whereas the new rule only includes QCCs. Most of the commenters support retaining the current rule for financial and training reasons. They maintain that it is too expensive to staff a program when all counseling activities must be performed by QCCs, and question how counselor interns and graduates would have the opportunity to get their required training. The Commission responds that it has decided to revise the definition of counselor to include QCCs and interns working towards licensure that would qualify them to be a QCC.

Additionally, Avenues Counseling Center suggests including QCCs or clinicians with masters' degrees in social work, counseling, rehabilitation, psychology or related fields in the definition of counselor. The commenter suggests that the definition discounts the value of clinicians without two years experience by placing them in the same category as a counselor intern with an associate's degree. The commenter requests a middle ground that recognizes this training and skill set.

The Commission responds that QCCs are already included in the definition of counselor. In response to comments received at the rules workshops and in response to the request for recognition of training and skills that other license holders may have, the Commission has revised the definition of QCC to delete the requirement for the listed licensees to have 1000 hours of documented experience treating substance-related disorders.

Sundown Ranch comments regarding whether LPC interns with a master's degree in counseling should be considered QCCs since they have more education than LCDCs. The Commission responds that it does not believe that LPC interns with a master's degree in counseling should qualify as QCCs since they do not have an appropriate license. Licensure carries with it certain duties and responsibilities that are not conveyed by education alone. The Commission further responds that it has amended 40 TAC CODE Chapter 141 to clarify who qualifies as a QCC and who qualifies as a counselor. Under the clarification of §141.101(39), a counselor includes various interns working towards licensure that would qualify them to be a QCC.

§141.101. Definitions. (67) Intervention Counseling. Austin Travis County MHMR and Amarillo Council comment that this term should be replaced with "intervention service" and that the last sentence of the definition should be deleted. The last sentence reads as follows: "The use of the term 'counseling' does not carry the same meaning as defined in paragraph (39) of this section."

The Commission disagrees. The term "intervention counseling" is appropriate and is currently used in the industry. The last sentence of the definition is needed because it prevents confusion with traditional counseling.

Comments Requesting Additional Definitions The Commission has received requests to add a variety of additional definitions. CiviGenics, Gateway Foundation, ASAP, Serenity Foundation of Texas, Land Manor and an individual comment that there is no definition for therapeutic community in Chapter 141 and suggest a definition. The Commission responds that it has added extensive rule provisions to Chapter 148 to address therapeutic communities.

Austin Travis County MHMR suggests adding a definition for "motivational interviewing" and suggests using the definition from current §148.1(35). The Commission declines to adopt a definition for "motivational interviewing" since it is a counseling style and should be distinguished from "brief intervention" counseling. Motivational interviewing is a directive, client-centered counseling style for eliciting behavior change by helping clients to explore and resolve ambivalence.

The Commission has amended its proposed definition of "brief intervention" in §141.101(17).

Austin Travis County MHMR further suggests adding definitions for "diversity of referrals," "successfully referred," and "other support services." The Commission declines to address the definition of "diversity of referrals" in this rulemaking. The term is more appropriately addressed in the FY05 contract. The Commission also declines to define "successfully referred" as the definition of "referral" in §141.101(101) provides sufficient guidance. Lastly, the Commission declines to adopt a definition for "other support services" as it believes the term has a commonly understood meaning.

The Commission has substituted the definition of nurse practitioner and deleted the definition of advanced practice nurse to clarify its intent and conform the definitions to the revised rules.

Subchapter A. DEFINITIONS

40 TAC §141.101

The rules are adopted pursuant to the TEX. HEALTH & SAFETY CODE §461.012(a)(15) which provides the Commission authority to adopt rules governing its functions, including rules that prescribe the policies and procedures it follows in administering any Commission program and §461.0141 which provides the Commission authority to adopt rules regarding purchase of services.

The code affected by the adoption of these rules is Chapter 461 of the Health and Safety Code.

§141.101.Definitions.

The following words and terms, when used in 40 TAC chs. 141, 142, 144, 147, 148, 150, and 153 of this title shall have the following meanings, unless the context clearly indicates otherwise:

(1) Abuse--An intentional, knowing, or reckless act or omission by provider personnel, a counselor, applicant for counselor licensure, or counselor intern that causes or may cause death, emotional harm or physical injury to a participant or client. Abuse includes without limitation the following:

(A) any sexual activity between provider personnel, a counselor, applicant for counselor licensure, or counselor intern and a participant or client;

(B) corporal punishment;

(D) efforts to cause fear;

(E) the use of any form of communication to threaten, curse, shame, or degrade a participant or client;

(F) restraint that does not conform with chapter 148 of this title (relating to Standard of Care);

(G) coercive or restrictive actions taken in response to a participant or client's request for discharge or refusal of medication or treatment that are illegal or not justified by the participant or client's condition; and

(H) any other act or omission classified as abuse by Texas law, including but not limited to, TEX. FAMILY CODE ANN. §261.001 (Vernon 1996) and TEX. HUM. RES. CODE ANN. §48.002 (Vernon Supp. 2004).

(2) Administrative Discharge--A discharge report processed by the Commission for a client whose last admission date and/or last billing end date exceeds 50 days.

(3) Administrative Follow-up--A report processed by the Commission if 90 days for non-detoxification clients or 40 days for detoxification clients have elapsed from the client's last discharge date and the client has not been readmitted to the same provider within 60 days (non-detoxification clients) or ten days (detoxification clients).

(4) Administrative Hearing--An appeals hearing conducted by the State Office of Administrative Hearings (SOAH).

(5) Administrative Law Judge (ALJ)--An individual appointed by the chief administrative law judge of SOAH under TEX. GOV'T CODE ANN. §2003.041 (Vernon 2004) to preside over a contested case proceeding.

(6) Administrative Procedure Act (APA)-TEX. GOV'T CODE ANN. ch. 2001 (Vernon 2000 & Supp. 2004), as amended.

(7) Adolescent--An individual 13 through 17 years of age whose disabilities of minority have not been removed by marriage or judicial decree.

(8) Adult--An individual 18 years of age or older, or an individual under the age of 18 whose disabilities of minority have been removed by marriage or judicial decree.

(9) Agency--TCADA.

(10) Alternative Activities--A strategy that gives participants and their families the opportunity to take part in educational, cultural, recreational, skill-building, and work-oriented substance-free activities. Activities under this strategy are designed to encourage and foster bonding with peers, family and community.

(11) Applicant--A person who has submitted an application for an initial license to provide chemical dependency counseling or treatment, renewal of a license, or certification or approval for provision of an offender education program. For funding purposes, an applicant is a person who has submitted a proposal or application to provide substance abuse services in response to a solicitation issued by the Commission.

(12) Assessment--An ongoing process through which the counselor collaborates with the client and others to gather and interpret information necessary for developing and revising a treatment plan and evaluating client progress toward achievement of goals identified in the treatment plan, resulting in comprehensive identification of the client's strengths, weaknesses, and problems/needs.

(13) ATOD--Alcohol, tobacco and other drugs collectively.

(14) Authorized Representative--An attorney authorized to practice law in the State of Texas or, if authorized by applicable law, a person designated in writing by a party to represent the party.

(15) Behavioral Health Integrated Provider System (BHIPS)--The Commission's Internet-based computer system for contracted service providers that offers contractors the tools to meet State and Federal requirements for reporting, including capturing required client and billing data.

(16) Block Grant--Substance Abuse Prevention and Treatment Block Grant, 42 U.S.C. 300x-21, et seq.

(17) Brief Interventions--Practices designed to initiate a resolution of a problem and motivate an individual to begin to do something about his or her substance abuse. Brief interventions are described in "Brief Interventions and Brief Therapies for Substance Abuse" (Treatment Improvement Protocol 34), published by the United States Department of Health and Human Services Center for Substance Abuse Treatment (CSAT). Brief interventions are short counseling sessions that can be as short as five minutes or long as an hour for "at risk" or "harmful" users that are not chemically dependent. These interventions are for the purpose of goal setting within safe limits, giving self care instruction and referral to other sources that are appropriate. For those clients that are dependent or for whom the position along the stage of change spectrum of alcohol or drug problems is uncertain, the brief intervention is a negotiation process to seek further assessment and referral to an appropriate level of care. The brief intervention is summarized by the acronym FRAMES: feedback, responsibility, advice, menu of strategies, empathy and self-efficacy.

(18) Brief Therapy--A systematic, focused process that relies on client engagement, and rapid implementation of change strategies. Brief therapies are described in "Brief Interventions and Brief Therapies for Substance Abuse" (Treatment Improvement Protocol 34), published by CSAT.

(19) Business Day--A weekday on which State offices are open.

(20) Center for Substance Abuse Prevention (CSAP) Prevention Strategies--

(A) Community-Based Process--A strategy designed to enhance the ability of the community to provide effective prevention, intervention, and treatment services for ATOD problems and HIV infection through community mobilization and empowerment. Activities include multi-agency coordination and collaboration, networking, and development of written agreements among community organizations.

(B) Environmental and Social Policy--A strategy designed to establish or change written and unwritten community standards, codes, and attitudes, thereby influencing incidence and prevalence of substance abuse in the general population. It includes activities that center on legal and regulatory initiatives and those that relate to the service and action-oriented initiatives.

(C) Information Dissemination--A strategy that provides awareness and knowledge of ATOD problems and/or HIV infection and their harmful effects on individuals, families, and communities. It also gives the general population information about available programs and services. Information dissemination is characterized by one-way communication from the source to the audience, with limited contact between the two. Information is disseminated through written communications and/or in-person community presentations.

(D) Prevention Education and Skills Training--A curriculum-based strategy designed to develop decision-making, problem solving, and other life skills. It also provides accurate information about the harmful effects of ATOD use, abuse and addiction pertinent to the needs of the target population. The basis of activities under this strategy is interaction between the educator/facilitator and the participants. These activities are aimed to increase protective factors, foster resiliency, decrease risk factors and affect critical life and social skills relative to substance abuse and/or HIV risk of the participant and/or family members.

(E) Problem Identification and Referral--A strategy that provides services designed to ensure access to appropriate levels and types of services needed by youth or adult participants.

(F) Alternative Activities--A strategy that gives participants and their families the opportunity to take part in educational, cultural, recreational, skill-building, and work-oriented substance-free activities. Activities under this strategy are designed to encourage and foster bonding with peers, family and community.

(21) Chemical Dependency--In addition to the statutory provisions defining chemical dependency as abuse of, dependence on, or addiction to alcohol or a controlled substance (as defined by TEX. HEALTH & SAFETY CODE ANN. ch. 481 (Vernon 2001) and related statutory provisions in TEX. HEALTH & SAFETY CODE ANN. chs. 461 and 464 (Vernon 2001 & Supp. 2004), the Commission also defines chemical dependency as substance-related disorders as that term is used in the most recent published edition of the Diagnostic and Statistical Manual of Mental Disorders (See DSM).

(22) Chemical Dependency Counseling--See Practice of Chemical Dependency Counseling.

(23) Chemical Dependency Counselor--See Licensed Chemical Dependency Counselor (LCDC).

(24) Chemical Dependency Counselor Intern--A person registered with the Commission who is pursuing a course of training in chemical dependency counseling at a registered clinical training institution.

(25) Chemical Dependency Treatment--A planned, structured, and organized chemical dependency program designed to initiate and promote a person's chemical-free status or to maintain the person free of illegal drugs. It includes, but is not limited to, the application of planned procedures to identify and change patterns of behavior related to or resulting from substance-related disorders that are maladaptive, destructive, or injurious to health, or to restore appropriate levels of physical, psychological, or social functioning.

(26) Child--For purposes of reporting abuse and neglect, a child is an individual under the age of 18 whose disabilities of minority have not been removed by marriage or judicial decree. For all other purposes in these rules, child shall mean an individual under the age of 13.

(27) Child Abuse and Neglect--Any act or omission that constitutes abuse or neglect of a child under the age of 18 by a person responsible for a child's care, custody, or welfare as defined in the TEX. FAM. CODE ANN. §261.001 (Vernon 1996).

(28) Client--An individual who receives or has received services, including admission authorization or assessment or referral, from a chemical dependency treatment provider, counselor, counselor intern, or applicant for licensure as a counselor, or from an organization where the counselor, intern or applicant is working on a paid or voluntary basis.

(29) Client Data Systems (CDS) Forms--CDS forms consist of the admission/transfer admission report, discharge report, and follow-up report.

(30) Clinical Evaluation--A systematic approach to screening and assessment.

(31) Clinical Training Institution (CTI)--An individual or legal entity registered with the Commission to supervise a counselor intern.

(32) Cognizant Agency--The Federal or State agency responsible for reviewing, negotiating, and approving an organization's indirect cost rate. TCADA has not been designated as a cognizant agency.

(33) Commission--Texas Commission on Alcohol and Drug Abuse and its branches, divisions, departments, and employees.

(34) Consenter--The individual legally responsible for giving informed consent for a client. Unless otherwise provided by law, a legally competent adult is his or her own consenter and the consenter for an adolescent or child is the parent, guardian, or conservator. Texas law allows a person 16 or 17 years of age to consent to his or her own treatment.

(35) Contested Case--A proceeding, including but not restricted to licensing, in which the legal rights, duties, or privileges of a party are to be determined by the Commission after an opportunity for adjudicative hearing.

(36) Contractor--Person funded by the Commission to provide substance abuse services unless otherwise specified.

(37) Cost Reimbursement--A payment mechanism used for prevention and intervention services in which funds are provided to carry out approved activities based on an approved budget.

(38) Counseling--A collaborative process that facilitates the client's progress toward mutually determined treatment goals and objectives. Counseling includes methods that are sensitive to individual client characteristics and to the influence of significant others, as well as the client's cultural and social context. Competence in counseling is built upon the understanding of, appreciation of, and ability to appropriately use the modalities of care for individuals, groups, families, couples, and significant others.

(39) Counselor--A qualified credentialed counselor, graduate or counselor intern working towards licensure that would qualify them to be a qualified credentialed counselor (QCC).

(40) Crisis Intervention--Actions designed to intervene in situations which require immediate attention to avert potential harm to self or others. Services include face-to-face individual, family, or group interviews/interactions and/or telephone contacts to identify needs.

(41) Days--Calendar days, unless otherwise specified.

(42) Digital Authentication Key--Identification data (that includes user identification and a time stamp) that is digitally stamped on electronic documents identifying the specific user that created the document. The identification data shall be controlled by a unique user ID and an encrypted password.

(43) Direct Care Staff--Staff responsible for providing treatment, care, supervision, or other direct client services that involve face-to-face contact with a client.

(44) Discharge--Formal, documented termination of services.

(45) Document (noun)--A written or electronic record.

(46) Diagnostic and Statistical Manual of Mental Disorders (DSM)--The Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association. The current version is the Fourth Edition, Text Revision (DSM-IV-TR). Any reference to DSM shall constitute a reference to the most recent edition then published.

(47) Driving While Intoxicated (DWI)--The offense of driving while intoxicated as defined in the TEX. PEN. CODE ANN. ch. 49 (Vernon 2003).

(48) Elderly--A person 65 years of age or older.

(49) Emergency Behavioral Health Condition--Any condition, without regard to the nature or cause of the condition, which in the opinion of a prudent lay person possessing an average knowledge of medicine and health, requires immediate intervention and/or medical attention without which an individual would present a danger to themselves or others or which renders individuals incapable of controlling, knowing or understanding the consequences of their actions.

(50) Encryption--A method that allows secure transmittal of information along the Internet by encoding the transmitted data using a mathematical formula that scrambles the data. Without a corresponding "decoder," the transmission would be unusable.

(51) Executive Director--The chief administrative officer or designee of the Texas Commission on Alcohol and Drug Abuse.

(52) Exploitation--The illegal or improper use of a client or participant, or their resources, for monetary or personal benefit, profit, or gain by provider personnel, a staff member, volunteer, or other individual working under the auspices of a provider or by a counselor, counselor intern or applicant for counselor licensure or any other act or omission classified as exploitation by Texas law including, but not limited to, TEX. FAM. CODE §261.001 (Vernon 1996) and TEX. HUM. RES. CODE §48.002 (Vernon Supp. 2004).

(53) Facility--See Treatment Facility.

(54) Family--The children, parents, brothers, sisters, other relatives, foster parents, guardians, and/or significant others who perform the roles and functions of family members in the lives of clients or participants.

(55) Fiscal Year--The Commission's fiscal year, September 1-August 31, unless otherwise specified.

(56) Gender Specific--Therapy, education and/or program components that are designed to address emotional, developmental, rehabilitative, health and/or other issues that are specific to the gender of the client.

(57) Graduate--An individual who has successfully completed the 270 hours of education, 300 hour practicum, and 4,000 hours of supervised work experience and who is still registered with the Commission as a counselor intern.

(58) Health Insurance Portability and Accountability Act of 1996 (HIPAA)--Pub. L. No. 104-191, 45 C.F.R. pts. 160 and 164.

(59) Human Immunodeficiency Virus (HIV)--The virus that causes Acquired Immune Deficiency Syndrome (AIDS). Infection is determined through a testing and counseling process overseen by the Texas Department of Health (TDH). Being infected with HIV is not necessarily equated with having a diagnosis of AIDS, which can only be diagnosed by a physician using criteria established by the National Centers for Disease Control and Prevention.

(60) HIV Antibody Counseling and Testing--A structured counseling session performed by Prevention Counseling and Partner Elicitation (PCPE) counselors registered with TDH. It promotes risk reduction behavior for those at risk of infection with HIV and other sexually transmitted diseases and offers testing for HIV infection.

(61) HIV Early Intervention Services--

(A) appropriate pretest counseling for HIV and AIDS;

(B) testing individuals with respect to such disease, including tests to confirm the presence of the disease, tests to diagnose the extent of the deficiency in the immune system, and tests to provide information on appropriate therapeutic measures for preventing and treating the deterioration of the immune system and for preventing and treating conditions arising from the disease;

(D) providing the therapeutic measures described in subparagraph (B) of this paragraph.

(62) Indicated Population--The population who may already be experimenting with drugs or who exhibit other problem-related behaviors.

(63) Individual Service Day--A day on which a specific client receives services.

(64) Intake--The process for gathering information about a prospective client and giving a prospective client information about treatment and services.

(65) Intervention--The interruption of the onset or progression of chemical dependency in the early stages. Intervention strategies target indicated populations.

(66) Intervention Counseling--Interactions to assist individuals, families, and groups to identify, understand, and resolve issues and problems related to ATOD use within a specific number of sessions or within a certain time frame. It is intended to intervene in problem situations and high-risk behaviors, which, if not addressed, may escalate to substance abuse or cause communicable disease. Such interactions should not include determining whether a person is in need of treatment. The use of the term "counseling" does not carry the same meaning as defined in paragraph (38) of this section.

(67) Key Performance Measures--Measures that reflect the services that are critical to the program design and intended outcomes of the program. Key performance measures are specified for all Commission-funded programs.

(68) Knowledge, Skills, and Attitudes (KSAs)--The knowledge, skills, and attitudes of addictions counseling as defined by CSAT Technical Assistance Publication (TAP 21) "Addictions Counseling Competencies: the Knowledge, Skills, and Attitudes of Professional Practice."

(69) License--The whole or part of any agency permit, certificate, approval, registration, or similar form of permission authorized by law.

(70) Licensed Chemical Dependency Counselor (LCDC)--A counselor licensed by the Texas Commission on Alcohol and Drug Abuse pursuant to TEX. OCC. CODE ch. 504 (Vernon 2002 & Supp. 2003).

(71) Licensed Health Professional--A physician, physician assistant, advanced practice nurse practitioner, registered nurse, or licensed vocational nurse authorized to practice in the State of Texas.

(72) Licensee--Any individual or person to whom the agency has issued any permit, certificate, approved registration, or similar form of permission authorized by law.

(73) Licensing--The agency process relating to the granting, denial, renewal, revocation, suspension, annulment, withdrawal, or amendment of a license.

(74) Life Skills Training (Treatment)--A structured program of training, based upon a written curriculum and provided by qualified staff designed to help clients with social competencies such as communication and social interaction, stress management, problem solving, decision making, and management of daily responsibilities.

(75) Mechanical Restraint--

(A) The application of a device restricting the movement of the whole or a portion of an individual's body to control physical activity. Only commercially available devices specifically designed for the safe and comfortable restraint of humans may be used as mechanical restraints.

(B) Despite their commercial availability, the following types of devices may not be used to implement restraint:

(i) those with metal wrist or ankle cuffs;

(ii) those with rubber bands, rope, cord, or padlocks or key locks as fastening devices;

(iii) long ties (e.g., leashes); or

(iv) bed sheets.

(i) Anklets--A cloth or leather band fastened around the ankle or leg and secured to a stationary object (e.g., bed or chair frame). Acceptable fasteners include Velcro and buckles. The device must not be secured so tightly as to interfere with vital functions, including circulation, or so loose as to permit chafing of the skin. Padding on the inside of the device, which aids in preventing chafing, is required.

(ii) Belts--A cloth or leather band fastened around the waist. The belt may either be attached to a stationary object (e.g., chair frame) or used for securing the arms to the sides of the body. The device must not be secured so tightly as to interfere with vital functions, including breathing and circulation.

(iii) Chair restraint--A well-padded stabilized chair that supports all body parts and prevents the individual's voluntary egress from the chair without assistance (e.g., table top chair, Geri-chair). Mechanical restraint devices (e.g., wristlets, anklets) are attached or may be easily attached to restrict movement. The devices must not be secured so tightly as to interfere with vital functions, including breathing and circulation.

(iv) Ties--A length of cloth or leather used to secure approved mechanical restraints (i.e., mittens, wristlets, arm splints, belts, anklets, vests, etc.) to a stationary object (i.e., bed or wheelchair frame) or to other approved mechanical restraints. Ties must not be secured so tightly as to interfere with vital functions, including breathing and circulation.

(v) Wristlets--A cloth or leather band fastened around the wrist or arm and secured to a stationary object (e.g., bed or chair frame, waist belt). Acceptable fasteners include Velcro and buckles. The device must not be secured so tightly as to interfere with vital functions, including circulation or so loose as to permit chafing of the skin. Padding on the inside of the device, which aids in preventing chafing, is required.

(76) Medication Error--Medication not given according to the written order by the prescribing professional or as recommended on the medication label. Medication errors include without limitation, duplicate doses, missed doses, and doses of the wrong amount or drug.

(77) Minor--A person under the age of 18.

(78) Neglect--A negligent act or omission by provider personnel, a staff member, volunteer, or other individual working under the auspices of a provider, or by a counselor, applicant for counselor licensure, or counselor intern that causes or may cause death, physical injury, or substantial emotional harm to a participant or client. Examples of neglect include, but are not limited to:

(A) failure to provide adequate nutrition, clothing, or health care;

(B) failure to provide a safe environment free from abuse;

(D) failure to establish or carry out an appropriate individualized treatment plan; and

(E) any other act or omission classified as neglect by the Texas law including, but not limited to, TEX. FAM. CODE §261.001 (Vernon 1996) and TEX. HUM. RES. CODE §48.002 (Vernon Supp. 2004).

(79) Advanced Practice Nurse Practitioner--A registered nurse currently licensed in Texas who is approved by the Texas State Board of Nurse Examiners to engage in advanced practice.

(80) Offender Education Program--An Alcohol Education Program for Minors, Drug Offender Education Program, DWI Education Program, or DWI Intervention Program approved by the Commission under 40 TAC ch. 153 of this title (relating to Offender Education Programs).

(81) OMB--United States Office of Management and Budget.

(82) On Duty--Present, ready, awake and able to perform job duties at the physical locations where services are provided.

(83) Outcome--The results of a service on clients or participants or the service delivery system itself.

(84) Outreach--Activities directed toward finding individuals who might not use services due to lack of awareness or active avoidance.

(85) Participant--An individual who is receiving prevention or intervention services.

(86) Party--A person or agency formally named or admitted as a party.

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

(88) Personal Restraint--Physical contact to control or restrict an individual's physical movement or actions. See also Mechanical Restraint.

(89) Personnel--The members of the governing body of a provider and, without limitation, its staff, employees, contractors, consultants, agents, representatives, volunteers, or other individuals working for or on behalf of the provider through a formal or informal agreement.

(90) Pleading--A written document submitted by a party, or a person seeking to participate in a case as a party, which requests procedural or substantive relief, makes claims, alleges facts, makes legal argument, or otherwise addresses matters involved in the case.

(91) Practice of Chemical Dependency Counseling Services--Providing or offering to provide chemical dependency counseling services involving the application of the principles, methods, and procedures of the chemical dependency counseling profession as defined by the activities listed in the domains of TAP 21 "Addictions Counseling Competencies: the Knowledge, Skills, and Attitudes of Professional Practice" published by CSAT.

(92) Prevention-A proactive process that uses multiple strategies to preclude the illegal use of alcohol, tobacco and other drugs and to foster safe, healthy, drug-free environments.

(93) Private Practice--The individual practice of a private, licensed health care practitioner who personally renders individual or group services within the scope of the practitioner's license and in the practitioner's offices. To qualify to be engaged in private practice, the individual licensed health care practitioner must not hold him/herself out as an organized program, or a part thereof, that provides counseling or treatment. This definition does not prohibit the sharing of office space or administrative support staff.

(94) Program--A specific type of service delivered to a specific population, at a specific location.

(95) Proprietary School--An organization approved and regulated by the Texas Workforce Commission under 40 TAC ch. 807 (2003) (relating to Proprietary Schools) that offers a course of study in chemical dependency counseling.

(96) Protective Factors--Characteristics within individuals and social systems which may inoculate or protect persons against risk factors and strengthen their determination to reject or avoid substance abuse.

(97) Provider--A person that performs or offers to perform substance abuse services. The term includes but is not limited to, a qualified credentialed counselor, applicant for counselor licensure, and counselor intern.

(98) Qualified Credentialed Counselor (QCC)--A licensed chemical dependency counselor or one of the practitioners listed below who is licensed and in good standing in the State of Texas and has at least 1,000 hours of documented experience treating substance-related disorders:

(A) licensed professional counselor (LPC);

(B) licensed master social worker (LMSW);

(D) licensed psychologist;

(E) licensed physician;

(F) licensed physician's assistant;

(G) certified addictions registered nurse (CARN); or

(H) advanced practice nurse practitioner recognized by the Board of Nurse Examiners as a clinical nurse specialist or nurse practitioner with a specialty in psych-mental health (APN-P/MH).

(99) Qualified Mental Health Professional--A qualified mental health professional as defined in the 25 TAC §401.583 (15) (2003).

(100) Recovery Maintenance--A level of treatment designed to maintain and support a client's continued recovery.

(101) Referral--The process of identifying appropriate services and providing the information and assistance needed to access them.

(102) Residential Site--A physical location owned, leased, or operated by a provider where clients reside in a supervised treatment environment.

(103) Respondent--A person against whom the Commission seeks an administrative, civil or criminal remedy for non-compliance with law and rules governing substance abuse services.

(104) Restraint--See Personal and Mechanical Restraint.

(105) Retaliate--Actions taken to punish or discourage a person, including a participant or client, who reports a violation of these rules or cooperates with an investigation, inspection, or intimidation proceeding by the Commission. Such actions include, but are not limited to, suspension or termination of employment, demotion, discharge, transfer, discipline, abuse, neglect, restriction of privileges, harassment, or discrimination.

(106) Risk Factor--A characteristic or attribute of an individual, group, or environment associated with an increased probability of certain disorders, addictive diseases, or behaviors.

(107) Risk Management--The process of identifying, evaluating and taking steps to minimize the risk associated with any activity, function, or process.

(108) Rules--An agency statement of general applicability that implements, or prescribes law or policy by defining general standards of conduct, rights, or obligations of persons, or describes the procedure or practice requirements that prescribe the manner in which public business before an agency may be initiated, scheduled, or conducted, or interprets or clarifies law or agency policy. The term includes the amendment or repeal of a prior rule but does not include statements concerning only the internal management or organization of the agency and does not affect private rights or procedures. This definition includes regulations. Any reference to the rules herein shall mean Commission rules currently in effect unless otherwise specified.

(109) Screening--The process through which a qualified staff, client or participant, and available significant others determine the most appropriate initial course of action, given the individual's needs and characteristics and the available resources within the community. In a treatment program, screening includes determining whether an individual is appropriate and eligible for admission to a particular program.

(110) Seclusion--Confinement of an individual for a period of time in a hazard-free room or other area in which direct observation can be maintained and from which egress is prevented.

(111) Selective Program--A prevention program designed to target subsets of the total population that are deemed to be at higher risk for substance abuse by virtue of membership in a particular population segment. Risk groups may be identified on the basis of biological, psychological, social or environmental risk factors, and targeted groups may be defined by age, gender, family history, place of residence, or victimization by physical and/or sexual abuse. Selective prevention programs target the entire subgroup regardless of the degree of individual risk.

(112) Services--Substance abuse services.

(113) Service Coordination--Administrative, clinical, and evaluative activities that bring the client, treatment services, community agencies, and other resources together to focus on issues and needs identified in the treatment plan. Service coordination, which includes care management and client advocacy, establishes a framework of action for the client to achieve specified goals. It involves collaboration with the client and significant others, coordination of treatment and referral services, liaison activities with community resources and managed care systems, client advocacy, and ongoing evaluation of treatment progress and client needs.

(114) Sexual Exploitation--A pattern, practice, or scheme of conduct by provider personnel or other individual working under the auspices of a provider, or by a counselor, intern, or applicant that involves a client or participant and can reasonably be construed as being for the purpose of sexual arousal or gratification or sexual abuse. It may include sexual contact, a request for sexual contact, or a representation that sexual contact or exploitation is consistent with, a part of or, a condition of receiving services. It is not a defense to sexual exploitation of a client, or participant if it occurs:

(A) with consent of the client or participant;

(B) outside of the delivery of services; or

(D) after the client or participant is no longer receiving services, unless it occurred two years after the client or participant stopped receiving services.

(115) Signature--Authentication of a record that meets the criteria established in §148.507 of this title (relating to General Documentation Requirements).

(116) Staff--Individuals working for a person in exchange for money or other compensation.

(117) State Office of Administrative Hearings (SOAH)--The agency to which contested cases are referred by the Commission.

(118) Substance Abuse--A maladaptive pattern of substance use leading to clinically significant impairment or distress, as defined by the most recently published version of the DSM.

(119) Substance Abuse Education--A planned, structured presentation of information provided by qualified staff, which is related to substance abuse or substance dependence, allows for discussion of the material presented and is relevant to the client or participant's goals.

(120) Substance Abuse Services (Services)--A comprehensive term intended to describe activities undertaken to address any substance-related disorder as well as prevention activities. The term includes the provision of screening, assessment, referral, treatment for chemical dependency and chemical dependency counseling.

(121) Substance-Related Disorders--Defined by the most recently published version of the DSM.

(122) TCADA--Texas Commission on Alcohol and Drug Abuse

(123) Texas Public Information Act-TEX. GOV'T CODE ANN. ch. 552 (Vernon 2000 & Supp. 2004).

(124) Therapeutic Services for Women--Education, services and/or therapy to address: parenting, reproductive and general health, self-esteem, physical and sexual abuse, mental health, child development and self-sufficiency.

(125) Toxic Inhalant--A gaseous substance that is inhaled by a person to produce a desired physical or psychological effect and that may cause personal injury or illness to the inhaler.

(126) Treatment--See Chemical Dependency Treatment.

(127) Treatment Facility--

(A) a public or private hospital;

(B) a detoxification facility;

(D) an intensive care facility;

(E) a long-term care facility;

(F) an outpatient care facility;

(G) a community mental health center;

(H) a health maintenance organization;

(I) a recovery center;

(J) a halfway house;

(K) an ambulatory care facility; or

(L) any other facility that offers or purports to offer treatment.

(128) Treatment Planning--A collaborative process through which the provider and client develop desired treatment outcomes and identify the strategies for achieving them. At a minimum, the treatment plan addresses the identified substance use disorder(s), as well as issues related to treatment progress, including relationships with family and significant others, employment, education, spirituality, health concerns, and legal needs.

(129) Unethical Conduct--Conduct prohibited by the ethical standards adopted by state or national professional organizations or by rules established by a profession's state licensing agency.

(130) Unit Rate--A payment mechanism in which a specified rate of payment is made in exchange for a specified unit of service.

(131) Universal Population--Universal prevention programs are delivered to large groups without any prior screening for substance abuse risk. A prevention program designed to address an entire population with messages and programs aimed at preventing or delaying the use and abuse of alcohol, tobacco, and other drugs.

(132) Utilization Review--The process of evaluating the necessity, appropriateness and efficiency of the use of chemical dependency treatment services, procedures and facilities.

(133) Youth--Individuals between the ages of 13 through 17. See also Young Adult in chapters 147 and 148 of this title (relating to Contract Program Requirements and Standard of Care).

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 December 31, 2003.

TRD-200308926

For further information, please call: (512) 349-6607

Subchapter B. CLAIMS AGAINST THE COMMISSION

40 TAC §§141.201 - 141.205

The rules are adopted pursuant to the TEX. HEALTH & SAFETY CODE §461.012(a)(15) which provides the Commission with the authority to adopt rules governing its functions, including rules that prescribe the policies and procedures it follows in administering any Commission program and §461.0141 which provides the Commission with authority to adopt rules regarding purchase of services. The rules are also adopted under TEX. HEALTH & SAFETY CODE §464.009, which provides TCADA with the authority to adopt rules and standards for the licensure of chemical dependency treatment facilities.

The codes affected by the adoption of these rules are Chapters 461 and 464 of the Health and Safety Code.

§141.201.Notice of Claim.

(a) For purposes of this Subchapter, the term contractor shall also have the meaning given that term in TEX. GOV'T CODE ANN. ch. 2260 (Vernon 2000 & Supp. 2004).

(b) To file a claim of breach of contract under TEX. GOV'T CODE ANN. ch. 2260 (Vernon 2000), the contractor must deliver written notice of the claim to the Commission's executive director.

(c) The notice must be signed by the contractor's authorized representative and delivered by hand, certified mail return receipt requested, or other verifiable delivery service.

(d) The claim must specifically describe:

(1) the nature of the alleged breach of contract, including the date of the event which forms the basis of the claim and the contract provision(s) breached;

(2) the damages claimed, including the amount and the method used to calculate them; and

(3) the legal basis for filing the claim, including the relationship between the alleged breach and the damages claimed.

(e) The contractor must submit supporting documentation with the notice of claim.

(f) The notice must be delivered no later than 180 days after the date of the event that forms the basis of the claim.

(g) Any amount(s) owed by the contractor shall be deducted from the total damages claimed. This includes amounts owed for work not performed or work not performed in substantial compliance with the terms of the contract. The total amount of damages (after deduction of amount owed by contractor) may not exceed the contracted amount or include consequential or similar damages, exemplary damages, any damages based on an unjust enrichment theory, attorney's fees or home office overhead.

§141.202.Agency Counterclaim.

(a) The Commission may file a counterclaim of breach of contract.

(b) Written notice of counterclaim must be delivered to the authorized representative of the contractor who signed the notice of claim of breach of contract.

(d) The notice must specifically describe:

(1) the nature of the counterclaim;

(2) the damages or offsets, including the amount and the method used to calculate them; and

(3) the legal theory supporting the counterclaim.

(e) The notice of counterclaim must be delivered to the contractor no later than 90 calendar days after receipt of notice of the claim.

§141.203.Timetable for Negotiations and Contested Case Hearings.

(a) The Commission's executive director must examine the contractor's claim and the Commission's counterclaim, if any, and initiate negotiations.

(b) Except as provided in subsection (c) of this section, negotiations shall begin no more than 60 calendar days following the latest of:

(1) the date of termination of the contract;

(2) the completion date in the original contract; or

(3) the date the notice of claim of breach of contract is received by the Commission.

(c) The Commission may delay the negotiations until the 181st calendar day after the date of the event giving rise to the claim of breach of contract. The Commission shall give the contractor written notice of the delay and notify the contractor when it is ready to begin negotiations.

(d) The parties must complete the negotiations as a prerequisite to a contested case hearing no later than 270 days after the Commission receives the notice of claim of breach of contract. The negotiation period may be extended through a written agreement signed by the authorized representatives of each party.

(e) The parties may agree to mediate the dispute at any time before the 270th day after the Commission receives the notice of claim of breach of contract, or before the expiration of any extension agreed to in writing by the parties.

(f) If negotiations fail to resolve the dispute, the case may be submitted to the State Office of Administrative Hearings (SOAH).

(1) The contractor may file a request for contested case hearing with the Commission if a complete settlement agreement has not been reached 270 calendar days after the date the claim is delivered to the Commission, or after the expiration of any extension agreed to in writing by the parties.

(2) The parties may agree to submit the case to SOAH before the 270th day if they have reached a partial settlement or if an impasse has been reached in the negotiations and proceeding to a contested case hearing would serve the interests of justice.

(3) The parties may continue to negotiate or mediate after a request for contested case hearing is referred to the SOAH.

§141.204.Conduct of Negotiations.

(a) Any limitations on the settlement authority of the representatives participating in the negotiations must be disclosed by the parties as soon as possible. To the extent possible, the parties shall select negotiators who are knowledgeable about the dispute and who are in a position to reach agreement or can credibly recommend approval of an agreement.

(b) Negotiation may be conducted by any method, technique, or procedure authorized under the contract or agreed upon by the parties. The contractor and the Commission may conduct negotiations with the assistance of one or more neutral third parties.

(d) To facilitate meaningful negotiation, the parties must exchange relevant documentation that supports their claims, defenses, counterclaims or positions.

(e) Any settlement reached during the negotiation must be put in writing and signed by representatives of the contractor and the Commission. The agreement must describe any procedures that must be followed to secure final approval.

(f) The final settlement must be documented in writing and signed by representatives of the contractor and the Commission with authority to bind the respective party. If the settlement does not resolve all issues raised by the claim and counterclaim, the agreement must specifically identify the issues that are not resolved.

(g) Unless the contractor and the Commission agree otherwise, each party shall be responsible for its own costs.

§141.205.Mediation.

(a) The contractor and the Commission may agree to mediate a claim through an impartial third party. Mediation is a forum in which an impartial person facilitates communication between parties to promote reconciliation, settlement, or understanding, but does not impose his own judgment on the issues.

(b) The mediation shall be governed by the provisions of the Governmental Dispute Resolution Act, TEX. GOV'T CODE ANN. ch. 2009 (Vernon 2003 & Supp. 2004).

(c) The Commission and the contractor shall select an impartial third party that is acceptable to both. The impartial third party must:

(1) possess the qualifications required under TEX. CIV. PRAC. & REM. CODE ANN. §154.052 (Vernon Supp. 2004);

(2) be subject to the standards and duties prescribed by TEX. CIV. PRAC. & REM. CODE ANN. §154.053 (Vernon 1997); and

(3) have the qualified immunity prescribed by TEX. CIV. PRAC. & REM. CODE ANN. §154.055 (Vernon 1997), if applicable.

(d) A mediation conducted under this section is confidential in accordance with TEX. GOV'T CODE ANN. §2009.054 (Vernon 2000).

(e) A final settlement agreement signed by the Commission under this section is subject to or excepted from required disclosure in accordance with TEX. GOV'T CODE ANN. ch. 552 (Vernon 2000 & Supp. 2003).

(f) Unless the contractor and the Commission agree otherwise, the costs of the mediator shall be divided equally between the parties and each party shall be responsible for its own costs.

(g) Any limitations on the settlement authority of the representatives participating in the negotiations must be disclosed by the parties before mediation begins.

(h) Any settlement reached during the mediation must be put in writing and signed by representatives of the contractor and the Commission. The agreement must describe any procedures that must be followed to secure final approval.

(i) The final settlement must be documented in writing and signed by representatives of the contractor and the Commission with authority to bind the respective party. If the settlement does not resolve all issues raised by the claim and counterclaim, the agreement must specifically identify the issues that are not resolved.

(j) If mediation does not resolve the claim to the satisfaction of the contractor, the contractor may file a request that the claim be referred to SOAH pursuant to TEX. GOV'T CODE ANN. ch. 2260 (Vernon 2000 & Supp. 2004). The request for referral must be filed according to the timetable described in §141.203 of this title (relating to Timetables for Negotiations and Contested Case Hearings).

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 December 31, 2003.

TRD-200308927

For further information, please call: (512) 349-6607

Subchapter C. PROCUREMENT

40 TAC §141.301, §141.302

The codes affected by the adoption of these rules are Chapters 461 and 464 of the Health and Safety Code.

§141.301.Procurement.

(a) The Commission shall procure all goods and services in compliance with 1 TAC ch. 391 (2003).

(1) Procurements will be classified as either formal or informal, based on the estimated dollar value of the transaction. Dollar thresholds will be established in Commission policies and procedures, and the methodology will be reviewed annually.

(2) The Commission may use a waiver process as defined in 1 TAC ch. 391 (2003) for procurements below $100,000. The waiver process may be used in the presence of unique circumstances related to that procurement action. All waivers will be approved by the executive director.

(3) Procurement of prevention, intervention, treatment and related support services shall be conducted as described in ch. 144 of this title (relating to Contract Administrative Requirements).

(b) The Commission requires compliance with the Historically Underutilized Businesses rules published by the Texas Building and Procurement Commission in 1 TAC ch. 111 (2003).

(c) Procurement personnel, vendors, contractors, and suppliers will adhere to standards of conduct established in Commission policies and procedures. These standards shall be at least as restrictive as standards of conduct for State officers and employees under applicable State and Federal law.

§141.302.Procurement Protests.

(a) An offeror may request an informal review of a tentative purchase award if:

(1) the offeror was not selected in a competitive procurement;

(2) the procurement was a sole source or emergency procurement; or

(3) the procurement was made under an executive director waiver.

(b) The protest must be limited to issues relating to the offeror's qualifications, the suitability of the goods or services offered by the offeror, or alleged irregularities in the procurement process.

(c) A procurement review request must be submitted in writing and received by the Commission no later than 30 calendar days after the date of the award, except for protests alleging irregularities involving standards of conduct on the part of Commission employees or selected vendors, which must be received by the Commission no later than 90 calendar days after the date of the award.

(d) The protest process shall be carried out in accordance with Commission policies and procedures, which include documentation standards.

(e) A procurement protest shall not be conducted as a contested case under the Administrative Procedure Act, TEX. GOV'T CODE ANN. ch. 2001 (Vernon 2000 & Supp. 2004).

(f) The Commission shall not award a contract for a protested procurement until the Commission has provided the protesting offeror with a written response. The Commission may waive this requirement for exigent circumstances or when an award required by State or Federal law must be completed by a particular date.

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 December 31, 2003.

TRD-200308928

For further information, please call: (512) 349-6607

Subchapter D. MEASURING THE EFFECTIVENESS OF THE STATE'S SUBSTANCE ABUSE PREVENTION SERVICES

40 TAC §141.401

The codes affected by the adoption of these rules are Chapters 461 and 464 of the Health and Safety Code.

§141.401.Interagency Agreement.

(a) Texas Commission on Alcohol and Drug Abuse, Texas Juvenile Probation Commission, Texas Youth Commission and Texas Department of Protective and Regulatory Services have agreed on the following criteria as measures of a substance abuse prevention program's effectiveness. According to Tex. H.B. 3126, 76th Leg. R.S. (1999), all funded substance abuse prevention programs shall:

(1) target problems that are specific to a given community or school.

(A) The provider shall determine what population(s) the program is designed to serve: universal, selective or indicated.

(i) Universal programs reach the general population (such as all students in a school).

(ii) Selective programs target a subset of the general population which is at high risk for substance abuse (such as children of drug users).

(iii) Indicated programs are designed for those who may already be experimenting with drugs or who exhibit other problem-related behaviors.

(B) The program shall identify and describe the primary and secondary target populations including specific information about:

(i) age, gender, and ethnicity;

(ii) risk and protective factors;

(iii) patterns of substance use;

(iv) social and cultural characteristics;

(v) knowledge, beliefs, values, and attitudes; and,

(vi) needs.

(i) address identified risks, needs and/or problems of the primary and secondary target populations;

(ii) are designed to enhance protective factors;

(iii) clearly describe behavioral and/or societal changes to be achieved; and

(iv) are realistic in relation to available resources.

(D) The program shall establish objectives for each contract period that are linked to the goals. Objectives must be realistic, outcome oriented, measurable and time-specific.

(2) provide social services to children who have a family member with a drug addiction.

(A) The program shall identify needs that cannot be met by the program and help the participant access appropriate support systems and community resources. The program shall maintain a current list of referral resources, including other services provided by the organization.

(B) The program shall provide information, referrals and follow-up for participant and/or family needs that cannot be met by the program.

(3) use strategies that are appropriate for children and adolescents of different ages. The program design, content, communications and materials shall:

(A) be available in the primary language of the target population;

(B) be appropriate to the literacy level, gender, race, ethnicity, sexual orientation, age and developmental level of the target population; and

(4) Provide continuity in services and intervention strategies for all grade levels as stipulated in any contracts the program enters into with the agencies in this interagency agreement.

(A) The substance abuse prevention program shall be designed to build on and support other related prevention and intervention efforts in the community. The program shall secure and maintain the support of key decision makers and leaders and shall establish formal linkages and coordinate with other community resources.

(B) Each substance abuse prevention program that provides activities within this strategy shall work with other service providers, organizations, individuals and families to promote substance abuse services and improve the community's ability to prevent substance abuse and related problems.

(C) The program must use existing community services and resources effectively to enhance the substance abuse prevention program.

(D) The program must establish formal linkages with other service providers to build a continuum of substance abuse services in the community. The program shall document active participation in collaborations to support community resource development.

(E) The program shall provide information, referrals and follow-up for participant and/or family needs that cannot be met by the program.

(b) In addition, according to Tex. H.B. 3126, 76th Leg. R.S. (1999), each agency shall require the substance abuse prevention program to submit an annual report that describes the program's effectiveness in meeting established criteria.

(1) The program shall perform self-evaluation to verify, document and quantify program activities and effectiveness.

(2) The program shall submit a written evaluation report using the format specified by the funding agency at the end of each contract 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 December 31, 2003.

TRD-200308929

For further information, please call: (512) 349-6607

Subchapter E. MISCELLANEOUS PROVISIONS

40 TAC §§141.501 - 141.503

The codes affected by the adoption of these rules are Chapters 461 and 464 of the Health and Safety Code.

§141.501.Public Comment and Requests.

At its public meetings, the Commission may receive public comment from any person on any issue which is not otherwise provided for by rule or procedure. The Commission may limit public comment to five minutes per person. The Commission shall maintain a list of visitors attending public meetings.

§141.502.Approval Authority.

(a) The executive director and the executive director's designees shall have authority to enter into contracts or approve vouchers for payment from funds appropriated to the Commission.

(b) The Commission members shall approve budget requests to be submitted to the legislature and shall approve the agency's budget of appropriated funds and funds from other sources.

§141.503.Training and Education.

Commission policy establishes eligibility requirements and employee obligations for training and education supported by the agency.

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 December 31, 2003.

TRD-200308930

For further information, please call: (512) 349-6607

Chapter 143. FUNDING

40 TAC §§143.1 - 143.3, 143.11 - 143.15, 143.17, 143.21, 143.22

The Texas Commission on Alcohol and Drug Abuse (Commission) adopts the repeal of Chapter 143, §§143.1 - 143.3, 143.11 - 143.15, 143.17, 143.21 and 143.22, concerning Funding, without changes to the proposal as published in the August 29, 2003, issue of the Texas Register (28 TexReg 7221).

The repeal of Chapter 143 is necessary because the Commission is adopting new rules. The new rules have been reorganized to provide a more functional and logical framework that is more closely aligned with the rules of other agencies operating under the Health and Human Services Commission.

There were no comments regarding the repeal of these sections.

The repeal is adopted under the Texas Health and Safety Code, §461.012(a)(15) which provides the Commission authority to adopt rules governing its functions, including rules that prescribe the policies and procedures followed by the Commission when funding services and §461.0141 which provides the Commission with the authority to adopt rules regarding purchase of services. The repeal is also adopted under Texas Health and Safety Code, §464.009, which provides the Commission authority to adopt rules and standards for the licensure of chemical dependency treatment facilities.

The code affected by the repeal is the Texas Health and Safety Code, Chapter 461.

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 December 31, 2003.

TRD-200308941

For further information, please call: (512) 349-6607

Chapter 144. CONTRACT REQUIREMENTS

The Texas Commission on Alcohol and Drug Abuse (Commission) adopts the repeal of Chapter 144, §§144.1, 144.11, 144.21, 144.101, 144.103 - 144.109, 144.121, 144.123, 144.124, 144.131 - 144.134, 144.141, 144.142, 144.145, 144.201, 144.204, 144.211 - 144.216, 144.311, 144.313, 144.321 - 144.327, 144.401, 144.411 - 144.418, 144.441 - 144.447, 144.451 - 144.456, 144.458, 144.460, 144.462, 144.501, 144.511, 144.521 - 144.523, 144.525, 144.526, 144.532, 144.541 - 144.543, 144.545, and 144.551 - 144.553, concerning Contract Requirements, without changes to the proposal as published in the August 29, 2003, issue of the Texas Register (28 TexReg 7222).

The repeal of Chapter 144 is necessary because the Commission is adopting new rules. The new rules have been reorganized to provide a more functional and logical framework that is more closely aligned with the rules of other agencies operating under the Health and Human Services Commission.

There were no comments regarding the repeal of these sections.

Subchapter A. GENERAL PROVISIONS

40 TAC §§144.1, 144.11, 144.21

The repeal is adopted under the Texas Health and Safety Code, §461.012(a)(15) which provides the Commission authority to adopt rules governing its functions and §461.0141 which provides the Commission authority to adopt rules regarding purchase of services. The repeal is also adopted under Texas Health and Safety Code, §464.009, which provides the Commission authority to adopt rules and standards for the licensure of chemical dependency treatment facilities.

The codes affected by the repeal are Chapters 461 and 464 of the Texas Health and Safety 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 December 31, 2003.

TRD-200308942

For further information, please call: (512) 349-6607

Subchapter B. CONTRACT ADMINISTRATION

40 TAC §§144.101, 144.103 - 144.109, 144.121, 144.123, 144.124, 144.131 - 144.134, 144.141, 144.142, 144.145

The repeal is adopted under the Texas Health and Safety Code, §461.012(a)(15) which provides the Commission with the authority to adopt rules governing its functions and §461.0141 which provides the Commission authority to adopt rules regarding purchase of services. The repeal is also adopted under Texas Health and Safety Code, Chapter 464, which provides the Commission authority to adopt rules and standards for the licensure of chemical dependency treatment facilities.

The codes affected by the repeal are Chapters 461 and 464 of the Texas Health and Safety 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 December 31, 2003.

TRD-200308943

For further information, please call: (512) 349-6607

Subchapter C. PROGRAM OVERSIGHT

40 TAC §§144.201, 144.204, 144.211 - 144.216

The codes affected by the repeal are Chapters 461 and 464 of the Texas Health and Safety 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 December 31, 2003.

TRD-200308944

For further information, please call: (512) 349-6607

Subchapter D. ORGANIZATIONAL

40 TAC §§144.311, 144.313, 144.321 - 144.327

The codes affected by the repeal are Chapters 461 and 464 of the Texas Health and Safety 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 December 31, 2003.

TRD-200308945

For further information, please call: (512) 349-6607

Subchapter E. PREVENTION AND INTERVENTION

40 TAC §§144.401, 144.411 - 144.418, 144.441 - 144.447, 144.451 - 144.456, 144.458, 144.460, 144.462

The codes affected by the repeal are Chapters 461 and 464 of the Texas Health and Safety 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 December 31, 2003.

TRD-200308946

Effective date: September 1, 2004

For further information, please call: (512) 349-6607

Subchapter F. TREATMENT

40 TAC §§144.501, 144.511, 144.521 - 144.523, 144.525, 144.526, 144.532, 144.541 - 144.543, 144.545, 144.551 - 144.553

The codes affected by the repeal are Chapters 461 and 464 of the Texas Health and Safety 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 December 31, 2003.

TRD-200308947

Effective date: September 1, 2004

For further information, please call: (512) 349-6607

Chapter 144. CONTRACT ADMINISTRATIVE REQUIREMENTS

The Texas Commission on Alcohol and Drug Abuse (Commission) adopts new Chapter 144, §§144.101 - 144.103, 144.201 - 144.211, 144.301 - 144.306, 144.402 - 144.410, 144.419, 144.420, and 144.502 - 144.507, concerning Contract Administrative Requirements, with changes to the text that was published in the September 5, 2003, issue of the Texas Register (28 TexReg 7655).

The new Chapter 144 has been revised to include the funding rules (formerly Chapter 143). The new Chapter 144 also contains the requirements and provisions for funded organizations that enter into a substance abuse services contract with the Commission. Provisions relating to program standards of care and requirements were moved from the existing Chapter 144 into either the proposed new Chapter 147--Contract Program Requirements, or Chapter 148--Standard of Care.

Other revisions to Chapter 144 include general clarification of current requirements and review for conformity with State and Federal law; eliminating language regarding sub-regional allocation of funds; eliminating the requirement for an annual service procurement plan; and giving the executive director the authority to approve selection criteria for requests for proposals. Additional changes include adding the requirement for unit rate providers to submit a cost report as part of the fiscal year end close-out; adding a section on de-obligation/re-obligation where the Commission may reduce or increase contracted funding in accordance with a fund utilization policy; and adding a provision that contractors may not assign or transfer their interest in the contract to another entity without approval.

Changes have been made to Chapter 144 as proposed. The Commission has deleted the requirement for contractors to purchase bonds for the storage and protection of records and data, and revised §144.502 to delete references to "a plan of corrective action" as this does not apply to all on-site visits/reviews, and clarified that the requirement for excess revenue to be refunded to the Commission applies to cost reimbursement programs only. Language referring to the maximum hours allowed for billing outpatient treatment services was eliminated. In addition to the changes discussed below, the Commission makes other grammatical and non-substantive changes for the purpose of clarifying its intent.

The public comment period began on September 5, 2003, with the publication of the proposed rules in the Texas Register and on the Commission's web site, and ended October 22, 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 e-mail, fax and U.S. mail. Commission staff summarized the comments received and published draft responses for review on the Commission's web site 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 web site in advance of the December 9, 2003, open meeting. Chapter 144 was approved for adoption during that meeting.

The Commission received comments on the proposed rules from Amarillo Council on Alcoholism and Drug Abuse (Amarillo Council); Association for the Advancement of Mexican-Americans, Inc.; The Association of Substance Abuse Programs (ASAP); Austin Travis County MHMR; Heart of Texas Council on Alcohol and Drug Abuse; Rainbow Days, Inc.; Riverside General Hospital; Serenity Foundation of Texas; Serving Children and Adolescents in Need, Inc.; Texas Department of Criminal Justice (TDCJ); and various individual commenters. The comments received and the Commission's responses appear below in rule number order.

General Comments on Chapter 144.

Riverside General Hospital has no recommendations but comments that the standards in Chapter 144 are clearly defined and promote ethical practices throughout the service delivery system. The Commission agrees with the comment.

ASAP and Serenity Foundation of Texas suggest adding a section to Chapter 144 on prevention training services. This section of the current rules is §144.454. Commenters suggest that the section is still needed since the Commission still funds these programs. With increasing focus on best practices, evidence based programs and cost efficiencies, statewide prevention training and technical assistance may become a growing need. Commenters believe that by offering high-quality prevention models and training to the state at large, expansion of best practices is facilitated and encouraged across the state. The Commission declines to reinstate a section on prevention training services in the proposed rules, but notes that failure to adopt a specific rules section regarding prevention training services does not indicate that these services will not be purchased in the future.

§144.102. Applicability of Chapter.

The Texas Department of Criminal Justice points out the proposed rule no longer includes, "When a statute that governs state agencies is in conflict with commission rules, the statute shall apply." Without this current language, the proposed rule would not reinforce the provision in TEX. GOV'T CODE ANN. §509.003 (Vernon 1998) that substance abuse programs operating under Community Justice Assistance Division standards do not have to be licensed by another state agency. TDCJ suggests that this language be added back to the proposed rule. The Commission has revised §148.401(a)(10) to address this concern.

§144.202. Allocation of Funds.

The Heart of Texas Council on Alcohol & Drug Abuse is opposed to eliminating language in §144.202 regarding subregional allocation of funds, believing it would weaken the effort to ensure that all Texans have reasonable access to substance abuse services. However, the council believes it is feasible for residential treatment centers to effectively serve clients who reside in other regions or subregions. The council questions how services to all Texans will be assured if sub-regional allocation is removed from the funding process.

The Commission responds that for planning and funding purposes, regional allocation aligns with the Commission's state appropriations and authority for spending. A subregional allocation of funds often interferes with the Commission's ability to provide and support necessary access to services. From a funding perspective, subregional allocation could impose barriers to timely reallocation of funds. From a planning aspect, such an allocation could impose barriers to moving funds to the areas of greatest need. Since residential clients may be served anywhere in the state, and the Commission does not have a mandated catchment area, the Commission believes the rule change strengthens its ability to provide reasonable access to treatment.

§144.209(g). Funding Decisions.

Amarillo Council, ASAP, Serenity Foundation of Texas, and Rainbow Days, Inc. supports renewal of existing competitive awards if it is determined that the best value can be achieved without further competition. The commenter states that if currently funded programs are performing, it believes that renewal will provide the Commission with an opportunity to save time and effort, and it will build stability and consistency into the service delivery system. Renewal will also provide the opportunity for the Commission to continue to fund performing programs without necessarily going through time and cost of a competitive bid process if circumstances warrant. The Commission agrees with the comments regarding §144.209(g).

§144.302. Organizational Structure.

An individual commenter states that the Commission should develop a rule in which the Commission would establish an evaluation criterion to be used for the annual performance reviews of the executive director. The commenter believes the executive director should not be able to write his own job description, evaluation questions, or performance standards and should not be able to pick board members. Additionally, the commenter believes that the board officers and members should be more aware of the activities that are being provided by their organization and know the expectations of their funding sources. It should be a requirement that employees complete a confidential evaluation upon leaving employment and annually for current employees concerning administration and council activities.

The Commission responds that it will not dictate an evaluation criteria/performance evaluation form for executive directors. Section 144.302(g), and (h)(1) - (5), state that the board shall appoint a chief executive officer (CEO) who will have documented education and experience to effectively manage the organization. The rule also lists capabilities that the CEO should have to ensure delivery of services to clients. As stated in §144.302(a), the governing body is legally responsible for the integrity of the fiscal and programmatic management of the organization. The Commission will not dictate the makeup of the board. Section 144.302(e) and (f) list requirements that deal with the boards' responsibility to provide information on duties of board members and ensure that members are sensitive to the needs of different cultures. The Commission will not require the provider's past or present employees to submit an annual evaluation or the organization. Section 148.214 lists provisions concerning unethical conduct or practice on the part of a person or contractor. Section 148.217 lists provisions against committing an illegal, unprofessional or unethical act and prohibits retaliation against those who report violations of the rules and also contains provisions concerning reporting of allegations involving the CEO. The Commission believes these provisions provide adequate and appropriate guidance as written and that they appropriately reflect that the Commission is not responsible for the day to day operations of providers.

§144.305(d)(2). Personnel Requirements and Documentation.

Austin Travis County MHMR suggests the language "outreach, screening and referral (OSR)" and "outreach, screening, assessment, and referral (OSAR)" is used interchangeably throughout the proposed rules, e.g., rules §144.305(d)(2) and §147.402. They recommend that one or the other be used consistently throughout the rules. The Commission responds that the word "assessment" has been added when referring to OSAR programs in §144.305(d)(2). The Commission has revised the rule to ensure that consistent language is used throughout the rules to refer to OSR programs.

§144.420. Contract Closeout.

The Association for the Advancement of Mexican Americans, Inc. and Serving Children and Adolescents in Need, Inc. ask what would submitting a cost report as part of a unit rate contractor's fiscal year end close-out mean and whether the report would be submitted by particular treatment service levels. They ask about due dates and the period that cost reports would cover, indicating that contractors of TDPRS-Child Protective Services have a four month period to submit of a cost report. It appears that the use of a cost report is to provide the Commission with a tool to adjust unit rates. They question whether the use of a Financial Status Report (FSR) is more practical.

The Commission responds that rate setting entities such as the Commission are required to periodically review the cost of providing services and the rates paid for such services. The usual and customary means for obtaining such information about the cost of service delivery is an in-depth cost report that captures the cost to provide the service inclusive of revenue received from all sources. It is the Commission's intention to require such a cost report as a contract closeout report rather than ask service contractors to report year end information twice. In addition, the current closeout report documentation was developed when the Commission did cost reimbursement contracting only. While the current report validates the amount of contract funds drawn down and expended, it does not provide full cost information for rate review purposes. The Commission has developed a cost report specific to substance abuse treatment services with the intention of using FY 2003 as an initial year to assess the instrument with feedback from treatment contractors. However, in the forthcoming consolidated environment, rate setting and associated cost reporting will be handled at the Health and Human Service Commission level. The cost information for the periodic report will be collected on a contractor's treatment programs as a whole and not individual programs or levels. The addition of a cost report will not affect the due date for the closeouts. Closeouts for Commission funded contracts will continue to be due 60 days following the end of the contract, unless otherwise notified of an extension. The periodic requirement of reporting cost data is not anticipated to affect the end of year contract closeout due dates. The Commission does not believe the use of FSRs to obtain cost report information is a better method. FSRs are currently required for cost-reimbursement programs and are required on a monthly basis. The Commission does not want to place the burden of additional routine monthly reporting requirements on the unit rate contractors.

§144.502(b). On-Site Reviews.

Amarillo Council, ASAP, Serenity Foundation of Texas, and Rainbow Days, Inc. suggest that the submission of a corrective action plan be changed from 14 calendar days after the postmark to 21 calendar days after the postmark. They believe this would provide more flexibility and ensure adequate preparation time was given to the responses. Contractors often experience that going by the postmark doesn't fairly represent when the contractor actually received the document in the mail and that postmarks are unreliable now that postal machines are readily used by businesses. A change to 21 days would provide more flexibility to ensure adequate preparation time is given for responses.

The Commission responds that that 14 calendar days after the postmark date of the draft report is adequate time for the contractor to submit specific documents and/or evidence of corrections as requested. At exit conferences, the contractors are provided with findings and are able to immediately start working on their responses. The Commission revises §144.502 to delete references to "a plan of corrective action" as this does not apply to all on-site visits/reviews.

§144.507(c). Audit Report Desk Reviews.

Amarillo Council, Serenity Foundation of Texas, and ASAP state that the requirement for excess revenue identified during the desk review process to be refunded to the Commission within the specified timeframe applies to cost reimbursement programs only. The requirement does not apply to unit rate programs and this needs to be specified in the rule. The Commission agrees and has revised §144.507(c) accordingly.

Subchapter A. GENERAL PROVISIONS

40 TAC §§144.101 - 144.103

The new rules are adopted under the under Texas Health and Safety Code, §461.012(a)(15) which provides the Commission authority to adopt rules governing its functions and §461.0141 which provides the Commission authority to adopt rules regarding purchase of services. The new rules are also adopted under Texas Health and Safety Code, §464.009 which provides the Commission authority to adopt rules and standards for the licensure of chemical dependency treatment facilities.

The codes affected by the adoption of these rules are Chapters 461 and 464 of the Texas Health and Safety Code.

§144.101.Definitions.

The words and terms used in this chapter shall have meanings set forth in 40 TAC ch. 141 of this title (relating to General Provisions), unless the context clearly indicates otherwise.

§144.102.Applicability of Chapter.

This chapter applies to all substance abuse programs funded by the Commission.

§144.103.Waivers.

The Commission's executive director may grant a temporary waiver from a requirement in this chapter to a contractor or a group of contractors. All waivers must be requested in writing. A waiver shall not extend beyond the contract period during which it is granted. To be eligible for a waiver, the contractor must show that an alternative method is used to meet the intent of the rule and the services are not significantly affected. The executive director will set forth in writing the reason for granting or denying the waiver.

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 December 31, 2003.

TRD-200308948

For further information, please call: (512) 349-6607

Subchapter B. FUNDING

40 TAC §§144.201 - 144.211

The new rules are adopted under the Texas Health and Safety Code, §461.012(a)(15) which provides the Commission authority to adopt rules governing its functions and §461.0141 which provides the Commission authority to adopt rules regarding purchase of services. The new rules are also adopted under Texas Health and Safety Code, §464.009 which provides the Commission authority to adopt rules and standards for the licensure of chemical dependency treatment facilities.

The codes affected by the adoption of these rules are Chapters 461 and 464 of the Texas Health and Safety Code.

§144.201.Applicability of Subchapter.

The rules in this subchapter apply to all funding applicants that have not been identified through an executive order as exempt from the competitive process as delineated in §144.211 of this subchapter (relating to Other Funding Processes). The executive order will identify the reason for the exemption.

§144.202.Allocation of Funds.

(a) Funds available for regional services will be allocated for each of the 11 Health and Human Services (HHS) regions through an approved statewide funding methodology.

(b) The Commission will establish terms and conditions needed to fulfill State and Federal funding mandates.

(c) The Commission will develop goals and identify services to be purchased based on its statewide service delivery plan as well as input from other interested parties.

§144.203.Competitive Procurement of Client Services.

(a) The Commission will fund chemical dependency services through competitive and noncompetitive procedures in accordance with TEX. HEALTH & SAFETY CODE ANN. §461.0141 (Vernon 2001).

(b) Competitive procurement methods used by the Commission will include the request for proposal (RFP) and alternative solicitation processes.

§144.204.Selection Criteria for Request for Proposal.

(a) The Commission will develop selection criteria for each request for proposal that reflect the identified goals and applicable State and Federal mandates. Selection criteria are designed to select applications that provide the best overall value to the State and provide the best outcome for service recipients.

(b) Selection criteria are listed in the request for proposal and will be approved by the executive director.

(1) program quality;

(2) the cost of the proposed service;

(3) the scoring system(s) to be used, the weight assigned to each factor, and the minimum score required for consideration for funding; and

(4) additional factors in determining best value as specified in 1 TAC §391.121 (2003), including:

(A) financial ability to perform services;

(B) total long-term cost to the agency of purchasing services from the applicant;

(D) access for underserved areas and populations;

(E) ability to fit within a regional continuum of services;

(F) past performance, outcomes, and compliance; and

(G) results of on-site reviews.

§144.205.Notice of Funding.

The Commission will post a notice on the Commission's web site and on the State's electronic business daily that a request for proposal has been issued.

§144.206.Request for Proposal (RFP).

(a) The request for proposal will include:

(1) goals describing the purpose of the solicitation;

(2) a clear and accurate description of the services to be purchased;

(3) all requirements that must be met for an application to be considered (eligibility criteria);

(4) an estimate of the funds available;

(5) applicable priorities and restrictions;

(6) application forms, formats, instructions, procedures, and timeframes;

(7) the selection criteria and the process used to evaluate proposals and select award recipients; and

(8) the availability of technical assistance.

(b) Information requested from the applicant may include, but is not limited to:

(1) identifying information;

(2) documentation of legal basis for operation;

(3) ownership or control information;

(4) information on business transactions and relationships;

(5) information on financial status; and

(6) information on persons convicted of crimes.

(c) An applicant shall also disclose to the Commission in writing any pending or threatened litigation that might prevent the applicant from meeting contract requirements, if funded. This includes but is not limited to:

(1) an action, suit, or proceeding before any court or governmental body, including environmental and civil rights matters; and

(2) employee labor disturbances.

§144.207.Application.

(a) An organization shall apply for funding using forms, formats, instructions, timeframes, and procedures specified by the Commission in the RFP and shall provide all requested information.

(b) The application shall be signed by the organization's authorized official. If funding for a coalition is requested, the application shall be signed by an authorized official of the organization acting as the fiscal agent of the coalition.

(c) Applications shall be submitted by mail or in person. Unless specifically allowed in the RFP, the Commission does not accept applications by facsimile or electronic transmission.

(d) Applications shall be received at the Commission by the date and time stated in the request for proposal. Late applications will not be accepted.

§144.208.Application Criteria.

(a) An application shall not be considered for competitive funding unless the applicant meets the following criteria on the application due date and continues to meet them throughout the selection and funding process.

(1) The applicant shall be established as a legal entity under State statutes and regulations.

(2) The applicant shall be in compliance with any Commission agreed order.

(3) The applicant shall be registered to do business in Texas and shall have a Texas address. A post office box address may be used when the application is submitted, but the applicant must be able to conduct business out of a physical location in Texas before funds will be released.

(4) Staff members, including the executive director, of a public or nonprofit entity shall not serve on their employer's governing board.

(5) The applicant shall be in good standing with any State or Federal agency that has a contracting relationship with the applicant. If a State or Federal agency has suspended or terminated an applicant's contract for deficiencies in performance of the contract, that applicant is not eligible to apply through a request for proposal unless all issues have been satisfactorily resolved as demonstrated by written documentation from the State or Federal agency. Additionally, an applicant is not eligible if it is debarred from participation in any Federal assistance program.

(6) Applicants that have previously been funded by the Commission shall be in compliance with the following requirements:

(A) If the applicant has been suspended or terminated by the Commission at any time in the past, all issues shall be satisfactorily resolved (demonstrated by written documentation from the Commission).

(B) If the applicant owes a refund to the Commission, the applicant shall be on schedule with the terms of the repayment agreement or shall have satisfactorily discharged the financial obligation.

(C) The applicant shall have submitted an annual audit as required by the grant agreement or contract and either corrected all deficiencies or submitted and maintained compliance with a corrective action plan that the Commission has accepted.

(b) The Commission may establish additional application criteria in a request for proposal or other form of solicitation.

(d) Treatment applicants must be appropriately licensed and in good standing on the first effective service day proposed.

(e) The Commission may deny funding to an applicant if any person who has an ownership or controlling interest in the applicant organization, or who is an agent or managing employee of the applicant, has been convicted of a criminal offense related to involvement in any program established under Medicare, Medicaid, or the Title XX block grant.

(f) The Commission may refuse to fund an applicant who cannot demonstrate that the location where services will be provided is in compliance with all applicable local and State zoning, building, health, fire, and safety standards.

§144.209.Funding Decisions.

(a) Funding decisions are made in compliance with criteria established in the request for proposal.

(b) The Commission may conduct a key control systems review on an applicant’s organization to verify that the organization has the capacity to deliver the services and achieve the outcomes specified in the RFP. The review also determines that adequate financial, managerial and operational systems are in place to safeguard the use of State and Federal funds.

(d) The Commission notifies successful and unsuccessful applicants in writing of the funding decision.

(e) Applicants shall not make public announcements about receipt of Commission funds until they have received written notification from the Commission.

(f) If the Commission does not receive a fundable application for a desired service, it may choose an alternative process to procure the service.

(g) The Commission may renew a competitive award if it determines that the best value will be achieved without further competition. Renewal of an award is not automatic. The Commission may renew an award when:

(1) the contractor maintains required performance standards;

(2) the Commission finds a continuing need for the services (relative to other services);

(3) the contractor continues to meet application criteria; and

(4) funds are available to continue the award.

§144.210.Alternative Solicitation.

(a) The Commission may use the alternative solicitation process to:

(1) purchase additional services if service needs and funds remain after a competitive request for proposal; and

(2) distribute funds that become available and must be awarded during a contract period.

(b) Generally, available funds are regionally allocated according to the statewide funding methodology.

(d) The Commission shall design selection criteria are designed to select applications that provide the best overall value to the State.

(1) Criteria for selection include program quality, cost, and other factors relevant for determining best value.

(2) Selection criteria are approved by the Commission's executive director.

(e) Notice of available funds for an alternative solicitation is posted on the Commission's web site and the State's electronic business daily. The posted solicitation on the web site includes:

(1) the services to be purchased;

(2) the geographic area to be served;

(3) funding availability;

(4) method(s) of payment;

(5) contract period;

(6) any limitations on eligibility to submit an application; and

(7) requirements and deadline for submitting an application.

§144.211.Other Funding Processes.

(a) The Commission may solicit a proposal from only one source if it is not feasible to use competitive procedures or State law does not require competition.

(b) One of the following must apply:

(1) A competitive process failed to elicit acceptable bids.

(2) The agency awarding or appropriating the funds to the Commission either authorized the noncompetitive negotiation or approved the entity to receive funds.

(3) Because of an emergency, it is necessary to proceed without formal advertising to avoid delay.

(4) The material or service to be purchased is available from only one source.

(5) State law does not require competition.

(c) If the available funds exceed $25,000, a notice that services will be purchased is published on the Commission's web site and on the State's electronic business daily.

(d) After a noncompetitive award is made, the Commission reserves the right to use a competitive process in subsequent periods.

(e) The Commission may reobligate funds to another provider providing similar services in the same geographic area without a competitive solicitation should the Commission terminate a contract due to non-performance or deobligate funds as described in §144.419 of this chapter (relating to Deobligation/Reobligation).

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 December 31, 2003.

TRD-200308949

For further information, please call: (512) 349-6607

Subchapter C. CONTRACT ORGANIZATION

40 TAC §§144.301 - 144.306

The codes affected by the adoption of these rules are Chapters 461 and 464 of the Texas Health and Safety Code.

§144.301.General Requirements.

Contractors shall establish and maintain effective internal programmatic and financial controls to ensure:

(1) Commission-funded programs are operated efficiently and effectively;

(2) the contractor maintains compliance with other funding and regulatory agencies;

(3) appropriate controls are in place to safeguard assets;

(4) Commission funds are properly spent and accounted for;

(5) clients/participants receive appropriate services; and

(6) services are adequately documented.

§144.302.Organizational Structure.

(a) All entities shall have a governing body that is legally responsible for the integrity of the fiscal and programmatic management of the organization.

(b) The governing body shall be a distinct business entity with legal authority to operate in the State of Texas.

(c) Staff members, including the chief executive officer, of a public or nonprofit entity shall not serve on their employer’s governing board.

(d) The governing body shall meet at least quarterly and maintain minutes that include:

(1) date, time, and place of the meeting;

(2) names of members present and absent; and

(3) summary of discussion and action taken.

(e) The governing body shall provide all members with information and training on the responsibilities and liabilities of the governing body and its individual members.

(f) The governing body shall ensure that all members are familiar with the contractor's target population(s) and sensitive to the needs of the different cultures represented.

(g) The governing body shall appoint a chief executive officer to manage the day-to-day operations of the organization and ensure that the organization has the programmatic, managerial, and financial capability to ensure proper planning, management, and delivery of funded services.

(h) The chief executive officer shall:

(1) have documented education and/or experience in financial, administrative and personnel management, and other areas needed to manage the organization effectively;

(2) ensure compliance with applicable laws and rules;

(3) ensure that all staff are competent and trained;

(4) establish mechanisms to ensure quality of services; and

(5) maintain adequate financial records according to generally accepted accounting principles.

(i) The contractor shall maintain a chart of the organization's structure and documentation of its staffing pattern. Documentation shall be sufficient to identify all staff positions, the individuals filling those positions, and current vacancies. Contractor shall review and update the information (if necessary) at least annually.

§144.303.Policies and Procedures.

(a) Contractors shall maintain a current manual that includes all policies and procedures required by the Commission.

(1) Policies shall be approved by the board, reviewed periodically, and revised as needed.

(2) Procedures shall be approved by the chief executive officer, reviewed periodically, and revised as needed.

(3) The policy and procedures manual shall be current, consistent with current Commission rules, individualized to the program, well organized, and easily accessible to all staff at all times.

(4) Contractors shall require each employee to read the policies and procedures applicable to the position and maintain documentation signed by the employee that the policies and procedures have been read and understood.

(b) The policy and procedure manual must include the following policies and procedures, as applicable.

(1) Contractors shall implement fiscal policies, and internal controls and procedures in the following areas:

(A) revenue/accounts receivable;

(B) billing/payment requests;

(D) payroll;

(E) expenditures/account payable;

(F) procurement of goods and services;

(G) match and program income and expenditures;

(H) fixed assets inventory and records;

(I) petty cash;

(J) cellular phone use;

(K) travel;

(L) subcontractor fiscal compliance monitoring (if applicable); and

(M) financial reporting.

(2) Contractors shall adopt and implement TCADA Workplace and Education Guidelines for HIV and Other Communicable Diseases in order to meet requirements as specified by the Americans with Disabilities Act, TEX. HEALTH & SAFETY CODE ANN. ch. 85 (Vernon 2001), and standard precautions for infection control as outlined by The Centers for Disease Control and Prevention.

(3) Contractors shall implement written policies and procedures to protect client/participant records and client/participant-identifying information from unauthorized disclosure in accordance with the Federal regulations governing Confidentiality of Alcohol and Drug Abuse Patient Records, 42 C.F.R. pt. 2 and the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

(4) Contractors shall implement and enforce a written policy prohibiting discrimination against an individual or group based on race, religion, ethnicity, country of origin, age, disability (including mental illness), sexual orientation, or gender.

(5) Contractors shall implement a written policy and procedures for handling complaints.

(6) Contractors shall implement procedures for reviewing employee backgrounds.

(7) Contractors shall implement a policy on standards of conduct.

(8) Prevention and intervention programs shall implement a tobacco policy as required by TCADA.

(9) Contractors shall maintain documentation of formal agreements and contracts to address identified deficiencies in access to program services for people with disabilities.

(10) Within ten days of a policy or procedure change, contractors shall inform staff about any changes to the policy and procedure manual that are relevant to their job duties and document the notification. If training is needed, it shall be provided and documented within 60 days.

§144.304.Organizational and Personnel Changes.

The contractor shall notify the Commission in writing within ten business days of:

(1) changes in the contractor's legal name, address, telephone number, official e-mail address, or legal status; and

(2) changes in the following personnel:

(A) certifying representative;

(B) board chair;

(D) chief financial officer;

(E) security administrator and backup for the Behavioral Health Integrated Provider System; and

(F) project director/program director.

§144.305.Personnel Requirements and Documentation.

(a) Contractors shall keep complete, current documentation.

(1) All required documents shall be factual and accurate.

(2) Authentication shall include signature, credentials when applicable, and date. If the document relates to past activity, the date of the activity shall also be recorded.

(3) Documentation shall be permanent and legible.

(4) When it is necessary to correct a required document, the error shall be marked through with a single line, dated, and initialed by the writer.

(b) Contractors shall maintain current personnel documentation on each employee. Health-related information shall be stored separately with restricted access as appropriate under TEX. GOV’T CODE ANN. §552.102 (Vernon 2000). Training records may be stored separately from the main personnel file, but shall be easily accessible upon request. Required documentation includes, as applicable:

(1) a copy of the current job description signed by the employee;

(2) application or resume with documentation of required qualifications and verification of required credentials;

(3) verification of work experience;

(4) annual performance evaluations;

(5) personnel data that includes date hired, rate of pay, and documentation of all pay increases and bonuses;

(6) documentation of appropriate screening and/or background checks;

(7) signed documentation of initial and other required training; and

(8) records of any disciplinary actions.

(c) Contractors shall have an adequate number of qualified staff to comply with Commission rules, provide the services described in the program description, and protect the health, safety, and welfare of clients/participants.

(d) Every program shall have an employee designated to serve as director. The individual must have appropriate education and training and at least two years of experience providing related services.

(1) The director of a prevention program must have at least two years of experience in substance abuse prevention, and the director of an intervention program must have at least two years experience in intervention. At least one year of experience must be specific to the program's target population.

(2) Prevention and intervention programs shall employ program directors designated as Certified Prevention Specialist (CPS), or program directors who have completed 40 hours of prevention specialist training as outlined below. Program directors for HIV early intervention (HEI), HIV outreach services (HIV) and outreach screening, assessment and referral (OSAR) programs are exempt from the CPS and 40 hour training requirement. The 40 hours of training must include:

(A) history of prevention as a discipline;

(B) facts about drugs and drug terminology;

(D) currently recognized prevention strategies and principles;

(E) role of media and environmental prevention approaches;

(F) promising, effective and/or model programs as designated by CSAP;

(G) cultural content and ethics of prevention; and

(H) assessment and evaluation as prevention tools.

(e) The program shall hire applicants who meet the minimum qualifications listed in the job description.

§144.306.Commission Logo and Slogan.

The contractor may not use the Commission's logo and slogan in publications, electronic media, or video material unless the Commission has given written permission.

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 December 31, 2003.

TRD-200308950

For further information, please call: (512) 349-6607

Subchapter D. CONTRACT ADMINISTRATION

40 TAC §§144.402 - 144.410, 144.419, 144.420

The codes affected by the adoption of these rules are Chapters 461 and 464 of the Texas Health and Safety Code.

§144.402.Application of Federal and State Regulations.

(a) All contractors shall comply with the provisions of the Uniform Grant Management Standards (UGMS). Expenditures of Commission funds, including required cash match, shall be reasonable, necessary, allocable, and allowable, and must receive required prior approval as stated in UGMS. All contractors shall also comply with Federal cost principles and administrative requirements as appropriate for the organization. When there is a conflict between UGMS and the Federal regulations, the most restrictive shall apply. The Federal cost principles and administrative requirements are applicable as follows:

(1) State and local governments or Indian tribal governments shall comply with cost principles found in the OMB Circular A-87 and administrative requirements found in the OMB Circular A-102.

(2) Not-for-profit contractors shall comply with cost principles found in the OMB Circular A-122 and administrative requirements found in the OMB Circular A-110 (with changes incorporated as 45 C.F.R. §74).

(3) Educational organizations shall comply with cost principles found in OMB Circular A-21 and administrative requirements found in OMB Circular A-110; (with changes incorporated as 45 C.F.R. §74).

(4) Commercial organizations shall comply with cost principles found in 48 C.F.R. §31, and administrative requirements found in OMB Circular A-110 (with changes incorporated as 45 C.F.R. §74).

(5) Hospitals shall comply with cost principles found in 45 C.F.R. §74, and administrative requirements found in OMB Circular A-110.

(b) All references in the circulars to "Federal" or "Federally" shall be expanded to read "Federal or State" or "Federally or State", as applicable. References to "recipient" shall be expanded to read "recipient, contractor, subcontractor, subrecipient, or provider."

(c) The contractor shall also comply with requirements and restrictions found in the Substance Abuse Prevention and Treatment Federal Block Grant, found at 42 U.S.C. §300x.

§144.403.Matching Funds.

In accordance with TEX. HEALTH & SAFETY CODE ANN. §461.014 (Vernon 2001), all contractors shall contribute at least 5.0% of the total Commission-funded contract expenditures in matching funds or in-kind contributions in compliance with applicable OMB circulars from sources eligible to be used for matching purposes. If this requirement is satisfied with cash, then the costs incurred must be allowable and borne with eligible funds. Cash and in-kind match may not count towards satisfying the match requirement if they have or will be used towards satisfying a match requirement for another Federal or State contract.

§144.404.Program Income.

(a) Contractors shall separately record and report all program income directly generated through the portion of a program or activity funded by the Commission.

(b) The program may charge fees as noted on Federal Poverty Income Level Guidelines--TCADA Sliding Fee Scale for Commission-Funded Services or Activities Provided:

(1) an otherwise eligible applicant is not refused Commission-funded services for inability to pay; and

(2) with prior approval, the resulting income can be used as listed below according to applicable regulations:

(A) as matching funds to offset allowable costs of the funded program;

(B) to expand or increase funded program services/activities or further expand program objectives; or

(3) Contractor shall maintain documentation to support how the resulting income is expended.

§144.405.Indirect Cost.

(a) If a contractor does not elect to direct cost all administrative expenses, a contractor may request approval to charge administrative expenses as indirect costs. Two methods are available for charging shared administrative costs. The contractor may:

(1) submit documentation of a current or provisional indirect cost rate approved by the contractor’s cognizant agency; or

(2) use an indirect cost rate not to exceed 10% as provided in the UGMS. If requesting this option, the contractor must provide supporting documentation that shows the direct salary and wage costs of providing the service (excluding overtime, shift premiums, and fringe benefits), as well as a list of indirect cost items that support the service.

(b) All contractors receiving funds from other sources must maintain a cost allocation plan showing how administrative costs are distributed among funding sources.

(d) The contractor shall obtain approval to use the indirect rate for each contract.

§144.406.Expenditures Requiring Prior Approval.

For contractors on a cost reimbursement payment mechanism, prior written approval is required for certain costs charged to the Commission contract. Costs that are allowable only with prior written approval from the Commission include:

(1) equipment;

(2) minor remodeling;

(3) contractual services;

(4) any transfer among program budget line items for direct costs when cumulative transfers exceed or are expected to exceed 10% of the total approved program budget; and

(5) transfers that are requested between programs or between intensities of treatment services.

§144.407.Equipment and Supplies.

(a) Equipment includes all tangible personal property that costs $5,000 or more per unit and has a useful life of more than one year. A set of components designed to function together shall be treated as a single unit.

(b) Supplies include all materials and other expendable property needed to carry out a contract with a unit cost of less than $5,000.

(c) Controlled items have a unit cost of $500 - $4,999 and/or a high risk of theft. Examples include televisions, fax machines, video recorder/players, printers, software, and mobile telephones.

(d) The contractor shall conduct an annual physical inventory of all equipment and controlled items purchased with Commission funds. The physical inventory may be conducted at a point certain during the fiscal year, but no later than 60 days after the close of the fiscal year.

(1) The inventory shall conform to standards found in the UGMS or the applicable OMB circular.

(2) Inventory records shall be current, maintained at the program site, and reported as part of the annual contract closeout.

(e) Contractor shall request disposition instructions from the Commission before disposing of inventoried items purchased with Commission funds at any time during or after the contract term. Additionally, contractors shall not dispose of property purchased with Commission funds without prior written approval from the Commission.

§144.408.Minor Remodeling.

(a) Minor remodeling is work that is required to change the interior arrangements or other physical characteristics of an existing building. It does not include work that substantially increases the value of the building nor does it include replacement or repair and maintenance of existing systems or structures.

(b) Contractor shall have written approval from the Commission before incurring any minor remodeling projects.

(1) The remodeling shall be essential to the Commission-funded program;

(2) The remodeled space shall be occupied or used by the program; and

(3) The building shall be owned or leased by the contractor; if the facility is leased, there shall be at least three years remaining in the lease period.

(d) If the program is funded only in part by the Commission, only a pro-rata share of the total minor remodeling costs may be charged to the Commission.

(e) Costs for minor remodeling shall not exceed an aggregate of $25,000 per contractor per project.

(f) A written request for remodeling must include a narrative description of the proposed functional utilization of the space and the final cost estimate. The following documents must accompany the request, as applicable:

(1) a single line drawing of the existing space and proposed alterations;

(2) equipment requirements prepared by the persons who will use and be responsible for the working space;

(3) final working drawings and specifications;

(4) list of fixed equipment proposed for the facility; and

(5) the design analysis report describing the heating, ventilation, air conditioning, plumbing, and electrical systems.

§144.409.Subcontracting.

(a) The provisions in this section apply when a contractor subcontracts, assigns, or transfers any activity central to the purposes of the contract to a third party.

(1) The subcontractor shall be a corporation, partnership, sole proprietor, or other entity with legal authority to operate in the State of Texas.

(2) The subcontractor shall be in good standing with all applicable legal, regulatory and funding agencies. If the subcontractor has been funded by the Commission, the organization shall not be suspended or delinquent on a repayment agreement, and shall not have had a contract terminated by the Commission for cause within the past three years. The Contractor shall require any potential subcontractor to disclose all legal, regulatory, or contractual actions initiated against it in the past three years, including pending actions and/or investigations.

(b) The contractor shall, in writing, require any subcontractor to comply with applicable laws and regulations and with the provisions and stipulations of the contractor’s contract with the Commission.

(c) The relationship between the contractor and the subcontractor shall be formalized in a written agreement that is signed by the governing body or legally responsible party of both the contractor and the subcontractor.

(d) The contractor shall retain sufficient rights and controls to fulfill its contract responsibilities to the Commission. Subcontracting does not relieve the funded contractor of any responsibility to the Commission under the contract.

(e) The contractor shall monitor subcontractor compliance with provisions of the contract and applicable laws and regulations, and shall take appropriate steps to ensure corrective action when issues of non-compliance are identified. The monitoring activity must be documented and will be subject to review by the Commission.

(f) The contractor is responsible for paying subcontractors. When a contract ends, the contractor and each subcontractor shall settle all claims promptly, including those from employees, vendors, and other subcontractors.

(g) Subcontractors must also comply with all applicable State and Federal laws and regulations and Commission requirements contained in the Commission's rules. These specifically include the audit requirements of Office of Management and Budget (OMB) Circular A-133 if applicable, and all other Federal and State regulations required in §144.402 of this title (relating to Application of Federal and State Regulations).

(h) Subcontractors are subject to Commission oversight. The contractor shall, in writing, require the subcontractor to permit access as described in §144.501 of this chapter (relating to Commission Oversight).

§144.410.Assignments and Transfers.

(a) Contractor shall not assign or pay another entity to provide services without prior written approval by the Commission.

(b) Contractor shall not transfer its interest in the contract without the written consent of the Commission.

§144.419.Deobligation/Reobligation.

The Commission may exercise its authority to deobligate (reduce) or reobligate (increase) contracted program funding during the contract term. Changes in funding will be made in accordance with a fund utilization policy that is based on budgeted versus actual expenditure levels and performance rates as indicated in the contract and documented by the contractor’s expenditure and performance reports.

§144.420.Contract Closeout.

(a) Submission of Documents. Contractors shall submit all financial, performance, and other closeout reports required under the contract within 60 days after the contract end date. Treatment contractors shall submit an annual cost report in a format designated by the Commission as part of their closeout packet. The Commission is not liable for any claims that are not resolved with the Commission within 90 days after the contract end date.

(b) Equipment. Contractors shall submit an inventory of property and controlled items purchased with Commission funds at closeout and request disposition instructions for property that is no longer needed.

(c) Payment of Refunds. Any funds paid to the contractor in excess of the amount the contractor is finally determined to be entitled under the terms of the contract constitute a debt to the Commission and will result in a refund. The contractor shall pay any refundable amount within the time period established by the Commission.

(d) Disallowances and Adjustments. The closeout of the contract does not affect:

(1) The Commission's right to disallow costs and recover funds on the basis of a later audit or other review.

(2) The contractor’s obligation to return any funds due as a result of later refunds, corrections, or other transactions.

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 December 31, 2003.

TRD-200308951

For further information, please call: (512) 349-6607

Subchapter E. CONTRACT OVERSIGHT

40 TAC §§144.502 - 144.507

The codes affected by the adoption of these rules are Chapters 461 and 464 of the Texas Health and Safety Code.

§144.502.On-Site Reviews.

(a) After an on-site review, the contractor will be notified in writing of any noncompliance with Federal and State statutes and regulations, Commission rules and contract requirements identified by the Commission in a draft report.

(b) The contractor shall respond to the draft report and the deficiencies and if necessary, submit documents and evidence of corrections to the Commission within 14 calendar days of the postmark date of the draft report.

(c) The Commission shall review the specific documents and evidence of corrections, including any modifications agreed upon prior to acceptance. The contractor’s response shall become a part of the final report.

(d) The contractor shall correct deficiencies identified in the final report within the specified time frame.

§144.503.Independent Audit Report.

(a) Contractors that expend a total amount of Federal awards (from the Commission and other funding sources) of at least $500,000 during their fiscal year must have a single or program specific audit in accordance with Office of Management and Budget Circular A-133, the requirements of the Single Audit Act Amendments of 1996, and other governance guiding the program.

(1) If the funds are expended under more than one Federal program, the contractor shall have a single audit.

(2) If the funds are expended under only one Federal program and the contractor is not subject to laws, regulations, or Federal contracts that require a financial statement audit, the contractor may elect to have a program-specific audit.

(b) When a contractor expends both State and Federal funds and is required to submit a single audit report, the schedule of Federal and State expenditures may be combined in one schedule in the report. However, the source and total amount of funds expended (Federal vs. State) must be clearly stated. Contractors that expend less than $500,000 in Federal or State funds from all sources during their fiscal year shall submit a signed audit arrangements statement to the Commission after their fiscal year end certifying that the contractor is not required to submit a single or program-specific audit report.

§144.504.Auditor Qualifications.

(a) The audit shall be conducted by an independent certified public accountant (CPA).

(b) The selected auditor must meet the requirements of the Government Auditing Standards (GAS) and be licensed in the state in which the audit is performed at the time the audit is performed.

(c) Contractors who use outside CPA firms to perform bookkeeping or accounting services shall not use the same CPA firm for audit services.

§144.505.Independent Audit Report Requirements.

(a) The audit report shall include the requirements found in:

(1) OMB Circular A-133 Compliance Supplement;

(2) Government Auditing Standards (GAS);

(3) UGMS; and

(4) the Commission's contract(s), including any stipulations and amendments.

(b) In addition, the audit shall meet applicable requirements in §144.402 of this chapter (relating to Application of Federal and State Regulations).

§144.506.Independent Audit Report Submission.

(a) The contractor shall submit three copies of all required audit documentation to the Commission, including:

(1) the audit report;

(2) any separately issued management letters;

(3) management responses that include a corrective action plan for each deficiency noted in the independent financial audit report and management letter.

(A) Management responses shall express agreement or disagreement with the noted deficiencies. Disagreement shall include additional support, evidence, or justification of the contractor's position.

(B) The corrective action plan shall include:

(i) the title(s) of the person(s) responsible for the corrective action;

(ii) the corrective action planned; and

(iii) the anticipated completion date.

(C) If the contractor believes corrective action is not required for a noted deficiency, the response shall include an explanation and specific reasons.

(D) The Commission shall review the corrective action plan.

(4) documentation of board approval or disapproval of the audit report.

(b) Audits shall be completed and submitted no later than nine months after the contractor's fiscal year end. Documentation of board approval may be submitted separately if the board is unable to review the audit report before the due date, but this documentation must be provided before the Commission's final acceptance of the audit.

§144.507.Audit Report Desk Reviews.

(a) After reviewing the audit, the Commission will send the contractor a resolution letter requesting a response to any administrative findings or deficiencies.

(1) The contractor shall respond to the Commission within 14 calendar days of the postmark date.

(2) If the response is not satisfactory, an additional 14 days will be given to provide a satisfactory response. If the issue is not resolved within that time period, sanctions may be invoked.

(b) When the review process indicates that no further action is needed, the Commission will mail an acceptance letter to the contractor.

(c) If excess revenue is identified during the desk review process, cost reimbursement contractors must refund the money within the specified time frame.

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 December 31, 2003.

TRD-200308952

For further information, please call: (512) 349-6607

Chapter 146. INTERAGENCY AGREEMENTS

40 TAC §146.21

The Texas Commission on Alcohol and Drug Abuse (Commission) adopts the repeal of Chapter 146, §146.21, concerning Interagency Agreements, without changes to the proposal as published in the August 29, 2003, issue of the Texas Register (28 TexReg 7226).

The repeal of Chapter 146 is necessary because the Commission is adopting new rules. The new rules have been reorganized to provide a more functional and logical framework that is more closely aligned with the rules of other agencies operating under the Health and Human Services Commission.

There were no comments regarding the repeal of these sections.

The repeal is adopted under the Texas Health and Safety Code, §461.012(a)(15) which provides the Commission with the authority to adopt rules governing its functions, including rules that prescribe the policies and procedures followed by the Commission in administering its programs.

The code affected by the repeal is Chapter 461 of the Texas Health and Safety 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 December 31, 2003.

TRD-200308931

For further information, please call: (512) 349-6607

Chapter 150. COUNSELOR LICENSURE

40 TAC §§150.1, 150.11 - 150.14, 150.21 - 150.28, 150.31 - 150.34, 150.41 - 150.43, 150.51 - 150.56, 150.62

The Texas Commission on Alcohol and Drug Abuse (Commission) adopts the repeal of Chapter 150, §§150.1, 150.11 - 150.14, 150.21 - 150.28, 150.31 - 150.34, 150.41 - 150.43, 150.51 - 150.56, and 150.62, concerning Counselor Licensure, without changes to the proposal as published in the August 29, 2003, issue of the Texas Register (28 TexReg 7266).

The repeal of Chapter 150 is necessary because the Commission is adopting new rules. The new rules have been reorganized to provide a more functional and logical framework that is more closely aligned with the rules of other agencies operating under the Health and Human Services Commission.

There were no comments regarding the repeal of these sections.

The repeal is adopted under the Texas Health and Safety Code, §461.012(a)(15) which provides the Commission authority to adopt rules governing its functions and Texas Occupations Code, §504.051, which provides the Commission authority to establish rules for the licensure of chemical dependency counselors.

The codes affected by the repeal are Chapter 461 of the Texas Health and Safety Code and Chapter 504 of the Texas Occupations 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 December 31, 2003.

TRD-200308958

For further information, please call: (512) 349-6607

40 TAC §§150.101 - 150.126

The Texas Commission on Alcohol and Drug Abuse (Commission) adopts new Chapter 150, §§150.101-150.126 concerning Counselor Licensure, with changes to the text that was published in the August 29, 2003, Texas Register , (28 TexReg 7266).

The new rules incorporate provisions of the scope of practice guidelines defined by the Center for Substance Abuse Treatment in Technical Assistance Publication 21: Addictions Counseling Competencies: The Knowledge, Skills, and Attitudes of Professional Practice. The new rules also incorporate provisions from Tex. S.B. 333, 78th Leg., R.S. (2003), which increase the minimum education level for the licensed chemical dependency counselor (LCDC) to an associate’s degree. In addition, the new rules address practice standards for LCDCs who deliver private practice services via electronic means including the Internet; add a requirement that LCDCs list their credentials when signing a professional document; and add a requirement that clinical training institution (CTI) providers employ a full-time qualified credentialed counselor (QCC) as a CTI coordinator.

Changes have been made to §§150.101-150.126 as proposed. The designated number of educational hours for addressing issues independent of substance abuse/dependence are no longer limited to post licensure, but may be obtained at any time. In addition to the changes discussed below to §§150.101-150.126, 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 150 was approved for adoption during that meeting.

The Commission received comments on the proposed rules from Alcohol and Drug Education Services; Bonham Veterans Administration Mental Health Clinic; The Association of Substance Abuse Programs (ASAP); CiviGenics; Hull, Henricks & MacRae law firm; San Antonio College; Sandstone Health Care, Inc. (Sandstone); Serenity Foundation of Texas; Texas Association of Addiction Professionals (TAAP); Texas Department of Criminal Justice (TDCJ); and various individual commenters. The specific comments received and the Commission’s responses appear below in rule number order.

§150.101. License Required. San Antonio College comments that the Licensed Masters Social Worker (LMSW) designation has been changed to Licensed Clinical Social Worker (LCSW). The Commission responds that the LMSW designation was not changed to LCSW. The former LMSW-ACP (Advanced Clinical Practitioner) has been changed to LCSW.

San Antonio College further comments that faith based counselors are rendering services and are not necessarily qualified to do so. The commenter suggests that the Commission should prevent this practice. The Commission responds that state law provides an exemption from counselor licensure for counselors providing services at registered faith-based exempt organizations. As long as they are practicing within the scope of that exemption, the Commission does not have jurisdiction over their practice.

§150.102. Scope of Practice. Hull, Henricks & MacRae law firm comments that the training requirements set forth in the Commission’s proposed scope of practice rule are beyond the Commission’s statutory authority and thus, should not be adopted. Specifically, it comments that requiring additional training for licensed counselors to enable them to address family issues, co-occurring substance and mental health disorders, and physical or sexual abuse issues, is outside of the requirements set out by statute governing licensure. The Commission disagrees with the comment that the required training is outside of the Commission’s authority. Pursuant to the Commission’s regulatory authority over licensed counselors, as set forth in state law, the Commission may adopt and enforce rules to perform its duties required by this statute. Part of the Commission’s statutory duty is to establish standards of conduct and ethics for persons licensed under the statute. As a result, the Commission has rules which set forth ethical standards governing the practice of chemical dependency counseling by LCDC’s. It is a violation of these ethical standards to provide services that exceed an LCDC’s professional competence. While the statute provides minimum requirements for obtaining a license, the Commission requires that additional training be obtained if an LCDC intends to provide counseling to a chemical dependency client regarding that client’s associated family issues, co-occurring substance and mental health disorders, and physical or sexual abuse issues. Failing to obtain such training may cause harm to the recipient of services and is therefore a violation of the LCDC’s ethical standards. The Commission has revised §150.102(b)(3) for clarity. The Commission has moved §150.102(b)(5) to §150.121.

§150.102(5). Scope of Practice. CiviGenics comments that counselors currently practicing substance abuse counseling with families, co-occurring mental health issues and physical/sexual abuse issues could be impeded by the rules proposed in §150.102(5) (new §150.121(d)(3)). The rule requires that LCDCs have 45 hours of education in the respective area of practice and 2000 hours of post licensure supervision. The commenter requests that the Commission grandfather counselors currently practicing in these areas. The Commission responds that the requirement to obtain the 45 hours of education and 2000 hours of post licensure supervision should not create undue hardship for counselors. The Commission believes that if an LCDC is to provide services to clients whose needs exceed stand-alone substance abuse, yet are related to substance abuse counseling, such as family issues, the counselor should obtain adequate training and supervision prior to providing these services independently.

The commenter also states that the Commission should add a provision that would allow those LCDCs with a master’s degree or those licensed for five years or more to only complete 24 hours of continuing education per year. He notes that the Commission allows LCDCs who are also LMSWs, LMFTs, LPCs, licensed physicians or licensed psychologists to only complete 24 hours of continuing education every two years. The Commission responds that the continuing education requirement is set in statute. All LCDCs must complete 60 continuing education hours every two years with the exception of those persons who are statutorily exempt.

§150.103. Commission Review. Hull, Henricks & MacRae law firm comments that the proposed rule regarding the Commission’s review of LCDCs and registered interns practice constitutes a warrantless search in violation of the Fourth Amendment of the U.S. Constitution and is in excess of the Commission’s rule making authority. The commenter states that without specific statutory authority and required limitations on that authority as set forth in current U.S. Supreme Court decisions, the Commission cannot require by rule that LCDC or intern permit the Commission to conduct a search of the premises within which counseling is performed. The Commission responds by revising the new rule to delete the provision that requires that an LCDC or intern permit an on-site inspection. However, the provision will permit the collection of documents and evidence that must be produced by the LCDC or intern to allow the Commission to investigate alleged violations of its rules or the law.

§150.107. Standards for 270 Educational Hours. San Antonio College comments that when the associate’s degree requirement goes in to effect, the Commission should not accept coursework from college continuing education programs or proprietary schools for the required coursework, i.e., the 135 alcohol and drug specific and the 135 related hours. The Commission responds that when the associate’s degree requirement goes in to effect, the Commission will continue to accept classes from college continuing education programs and proprietary schools for those who have an associate’s degree, but did not obtain the required courses. The Commission believes to require credit courses for those who have completed their approved associate’s degree can cause a hardship and limit options to the students. This would unnecessarily limit access to the field.

San Antonio College also comments that the Commission should require that students receive a grade of C or above. The Commission disagrees. Because there are other ways a student may receive credit for a course without a grade, for example, pass/fail, the Commission believes it should consider all relevant courses for which the college officially awarded credit to the student on the transcript.

Lastly, San Antonio College comments that applicants with advanced degrees that are not in the human behavior/development and service delivery fields should be required to take the required coursework for credit as described in §150.107 as opposed to taking college continuing education courses or courses at proprietary schools. The Commission responds that if a person’s advanced degree is not in the human behavior/development and service delivery field, currently the person may obtain the required educational hours and practicum hours through a proprietary school or college continuing education program. However, once the associate’s degree requirement goes in to effect, the individual will be required to get the approved degree. The Commission will not substitute an unrelated bachelor’s or master’s degree for the appropriate associate’s degree.

§150.109. Education and Experience Exemptions/Waivers. Alcohol and Drug Education Services comments that the Commission should also require those with bachelor’s and master’s degrees to have specialized training because those without the specialized training are not knowledgeable in this field. The Commission responds that statute requires the Commission to waive the educational requirement and certain experience requirements for those with a bachelor’s degree or higher in certain specified areas. However, no one is exempt from taking the LCDC examination, and the Commission believes, if an individual passes both the written and oral exams, they have demonstrated that they possess adequate and appropriate knowledge of this field.

§150.110. Requirements for Licensure. Bonham Veterans Administration Mental Health Clinic comments that the 4000 hours of supervised work experience should be reduced to 3000 hours or less. The Commission responds that the requirement to obtain 4000 hours of supervised work experience for the LCDC is statutory.

Alcohol and Drug Education Services commented that TCADA should increase the education level of the LCDC license to an associate’s degree. The Commission responds that the education level for the LCDC was increased to an associate’s degree as a result of Tex. S.B. 333, 78th Leg., R.S. (2003).

An individual comments that TCADA should require the associate’s degree to be in the social sciences to ensure that the individual takes courses related human services. The Commission believes that the rule ensures that the individual will take courses in the human services field. The rule requires individuals to study human behavior/development and service delivery. Also, the individual is required to take 270 substance abuse specific/related educational hours, as part of the degree, and to complete a practicum. At a minimum, this requires that the student take seven human service courses.

§150.111. Standards for Supervised Work Experience. San Antonio College comments that the Commission should allow students to earn supervised work experience hours during college internships without requiring the college to find sites that are registered with the Commission as a CTI. The Commission responds that because standards of supervision may vary from school to school, the Commission will not grant the authority to colleges to provide supervised work experience hours without assurances that certain standards will be followed. Therefore, the Commission will allow colleges to register as CTIs to ensure consistency in supervision. Approval as a registered CTI would allow the college to use training sites that are not registered with the Commission.

§150.113. Issuing Licenses. An individual requests that she be allowed to put her maiden name or an alias on her license to protect her from potential harm from her clients. She also does not want to display her license so that clients will not be able to know her true identity. She states that the fingerprint requirement to renew the license poses a risk to LCDCs, because the Commission will be able to obtain the licensee’s real name and place it on the license. She believes that for clients to know her true identity places her safety in jeopardy because she works with the sex offender population. The Commission responds that it has a statutory responsibility to regulate counselors and to protect clients, including those in the criminal justice system. The Commission requires the true identity of the licensee to perform its regulatory functions. Clients have the right to know the identity of the person providing services to them and the right to file a complaint to the regulatory authority if necessary. The fingerprinting requirement is statutory. An LCDC has a duty to provide accurate information to the Commission. To clarify this rule, the Commission has amended it to require notification to the Commission when an LCDC changes his or her name.

§150.120. Counseling Through Electronic Means. Alcohol and Drug Education Services comments that the Commission should prohibit the counselor from providing services via the Internet. The Commission responds that State law permits services to be delivered via Internet counseling and requires that the Commission set standards and regulate those who do provide such services.

§150.121. Ethical Standards. San Antonio College comments that the Commission should include both over-the-counter and prescription drugs within the ethical standard prohibiting counselors from providing services under the influence. The Commission responds that it is up to the counselor and his/her employer to ensure that the counselor is not impaired when providing services, whether the impairment is caused by alcohol or other chemicals, including the abuse of legally prescribed or illegally obtained medication or abuse of over-the-counter medications. Section 150.121(e) prohibits the provision of service while impaired, intoxicated, or under the influence of chemicals, which includes abuse of medications.

Alcohol and Drug Educational Services comments that LCDCs should be required to sign their credentials after their name. The Commission concurs with requiring an LCDC to list their credentials after signing their name. This requirement is found in §150.121(f)(3) of the rules.

An individual comments that the Commission should eliminate the "two year rule" that prohibits a counselor from establishing a relationship with a client and increase this time period to a lifetime. The commenter believes this rule compromises the ethics of the field by giving a "mixed message" to the counselor. The Commission responds that it does not believe the rule gives a conflicting message regarding counselor behavior. The Commission clearly states that the counselor will have no relationship of any kind with the client for two years after the service is completed. The Commission does not believe that the two year rule should be increased to lifetime for two reasons. First, two years is a reasonable limitation in that it reduces the likelihood that a client may be taken advantage of after being involved in a therapeutic relationship. Second, the substance abuse field is unique in that many of those who recover may later seek to become counselors themselves. As a result, former clients may work with counselors or facilities that once treated them. Imposing a lifetime restriction would unnecessarily keep qualified individuals out of the treatment field.

§150.123. Clinical Training Institution (CTI) Registration. Riverside General Hospital comments that the Commission should not require CTIs to employ a QCC as the CTI coordinator. The commenter believes that the current system is effective, cost efficient and complies with the Knowledge Skills and Abilities (KSAs) of counseling as defined by CSAT. The Commission responds that numerous agencies do not have a QCC to provide supervision to their interns. This failure compromises the integrity of the CTI program and places clients at risk. The CTI rules have always required that the CTI coordinator be a QCC, but have never specified that the QCC would have to be an employee of the entity. By requiring the agency to employ a QCC, the Commission ensures better accountability on the part of CTI for the supervision of interns.

§150.124(a)-(k). Clinical Training Institution (CTI) Standards. Sandstone Healthcare, Inc. comments that to require the CTI to appoint a QCC as a CTI training coordinator to oversee the training activities and to ensure compliance with the rules would cost approximately $30,000. It alleges that there is no benefit to having the CTI training coordinator be a QCC and that administrative staff should be allowed to conduct these supervision activities. The Commission responds that this requirement has existed since January 2000. Section 150.123(a)(3) of the new rules require that the CTI employ a QCC. The QCC could be an independent contractor or a regular employee. Employing a QCC as a CTI coordinator, increases accountability for the supervision of interns. It would be inappropriate for non-clinical administrative staff to provide clinical supervision activities to counselor interns. Staff who are not QCCs do not possess the skills and knowledge to perform the supervision task required by these rules.

§150.125. Direct Supervision of Interns. San Antonio College comments that it is not clear where the definition of a Qualified Credentialed Counselor (QCC) is located. The Commission responds that the definition of QCC is located in 40 TAC §141.101(98).

San Antonio College further comments that the Commission should require practicum students to sign practicum student (PS) after their name to differentiate between the practicum student and the counselor intern (CI). The Commission responds that the TEX. OCC. CODE ANN. ch. 504.002(b)(2) states that a person may provide services if they are pursuing "a course of study in counseling from a regionally accredited institution of higher education or training institution if the person is designated as a counselor intern…" Therefore, a person can be an intern with a college or an intern with the Commission. The Commission does not believe there is a need to differentiate between PS and CI in the client file. In each case, the person is an intern and is subject to supervision.

This new chapter is adopted pursuant to TEX. OCC. CODE ANN. §504.051, which provides the Commission authority to adopt rules governing the licensure of chemical dependency counselors and TEX. HEALTH & SAFETY CODE ANN. §461.012(a)(15), which provides the Commission authority to adopt rules governing its functions.

The codes affected by the adoption of these rules are Chapter 461 of the Texas Health and Safety Code and Chapter 504 of the Texas Occupations Code.

§150.101.License Required.

(a) An individual identified to the public as a chemical dependency counselor must be licensed or exempt under this chapter. Except as provided by this section, individuals who are not licensed chemical dependency counselors (LCDCs) shall not:

(1) offer or provide chemical dependency counseling services other than education;

(2) represent themselves as chemical dependency counselors; or

(3) use any name, title, or designation that implies licensure as a chemical dependency counselor.

(b) The following people are exempt from this chapter when they are acting within the scope of their authorized duties:

(1) counselors employed by Federal institutions;

(2) school counselors certified by the Texas Education Agency;

(3) licensed physicians, licensed psychologists, licensed professional counselors (LPC), licensed marriage and family therapists (LMFT), and licensed master social workers (LMSW);

(4) religious leaders of congregations providing pastoral counseling within the scope of their congregational duties and people who are working for or providing counseling with a program exempted under TEX. HEALTH & SAFETY CODE ANN. §§ 464.051-.061 (Vernon 2001 & Supp. 2004);

(5) students who are participating in a practicum as part of a supervised course of clinical training at a regionally accredited institution of higher education or a proprietary school; and

(6) counselor interns who are registered with the Commission and working under the auspices of a registered clinical training institution.

(1) are legally authorized to provide chemical dependency counseling in those states; and

(2) do not offer or provide chemical dependency counseling in Texas for more than 30 days in any 12-month period.

(d) A person who qualifies for an exemption but chooses to get a license from the Commission is subject to the same rules and disciplinary actions as other licensees.

§150.102.Scope of Practice.

(a) A licensed chemical dependency counselor (LCDC) is licensed to provide chemical dependency counseling services involving the application of the principles, methods, and procedures of the chemical dependency profession as defined by the profession's ethical standards and the Knowledge, Skills, and Abilities (KSAs) as defined in 40 TAC ch. 141 of this title (relating to General Provisions). The license does not qualify an individual to provide services outside this scope of practice.

(b) The scope of practice for a chemical dependency counselor includes services that address substance abuse/dependence and/or its impact on the service recipient subject to the following:

(1) the counselor is prohibited from using techniques that exceed his or her professional competence;

(2) the service recipient may only be the user, family member or any other person involved in a significant relationship with an active user;

(3) LCDCs may diagnose substance disorders, but anything other than a mental health diagnostic impression must be determined by a qualified professional; and

(4) LCDCs are not qualified to treat individuals with a mental health disorder or provide family counseling to individuals whose presenting problems do not include chemical dependency.

§150.103.Commission Review.

Pursuant to a Commission inquiry regarding an alleged violation of the its rules or the law, a person licensed, registered, or approved under this chapter shall produce records, documents and other evidence related to the license, registration, or approval to the Commission, upon request, unless otherwise prohibited by law. A person licensed, registered or approved under this chapter, shall not interfere with the Commission’s access to clients, witnesses or other parties.

§150.104.Fees.

(a) The schedule for fees is:

(1) initial application fee--$25;

(2) initial licensure fee--$75;

(3) renewal fees:

(A) renewal application fee--$25;

(B) license renewal fee--$75;

(D) late renewal penalty fee (between 91 days and one year after the license expiration date)--$75;

(4) background investigation fee--$40;

(5) inactive status fee--$50;

(6) certificate replacement or duplication fee--$25.

(b) The Commission charges a $25 fee for a printed list of licensed counselors or a set of mailing labels.

(c) The Commission may contract with an outside organization to administer the licensure examination, and the fee charged by the contract organization is subject to change. The current fee shall be printed in the registration form. Examination fees shall be paid directly to the contract organization administering the examination.

(d) Licensure fees paid to the Commission are not refundable.

(e) Fees shall be paid in full with a cashier's check, commercial check, or money order. If online application is available, the fee may be paid with a credit card and is subject to a surcharge by the online vendor.

§150.105.Licensure Application Standards and Registration.

(a) Every person seeking licensure shall register with the Commission by submitting the following items in a form acceptable to the Commission:

(1) the application fee and the background investigation fee;

(2) the Commission's current application form which has been completed, signed, dated, and notarized;

(3) a recent full-face wallet-sized photograph of the applicant;

(4) two sets of fingerprints completed according to Commission instructions with cards issued by the Commission; and

(5) documentation that the applicant has successfully completed intern registration requirements in §150.106 of this title (relating to Requirements for Counselor Intern Registration).

(b) An applicant shall:

(1) read the Commission rules (40 TAC ch. 150 (2004));

(2) follow all laws and rules, including the ethical standards;

(3) allow the Commission to seek any additional information or references necessary; and

(4) notify the Commission in writing within 30 days of a change in address.

(d) An application packet will not be accepted unless it is complete.

(1) Incomplete documents will be returned to the sender. The Commission will hold the remaining documents, but will not accept the application until all outstanding documents have been completed and approved.

(2) The application and background fee is not refundable and will not be returned. When resubmitting documents that were returned to the sender as incomplete, a second application fee is not required.

(e) A document may be considered incomplete if it does not conform to the following standards.

(1) All documents must be complete, signed, and dated. Signatures shall include credentials. If the documentation relates to past activity, the date of the activity shall also be recorded.

(2) Documentation shall be permanent and legible.

(3) When it is necessary to correct a document, the error shall be marked through with a single line, dated, and initialed by the writer. Correction fluid shall not be used.

(f) An applicant must receive written notice of registration from the Commission before accumulating any supervised work experience or taking the examination or providing chemical dependency services.

(g) Within 45 days of receipt of the application, the Commission shall notify the applicant that the application is complete or specify the additional information required.

(h) By signing the application, the applicant accepts responsibility for remaining knowledgeable of licensure rules, including revisions.

(1) Current rules are published in the Texas Administrative Code and posted on the Secretary of State's web site and the Commission's web site.

(2) Proposed rule changes are published in the Texas Register and posted on the Secretary of State's web site and the Commission's web site.

§150.106.Requirements for Counselor Intern Registration.

To be eligible for a counselor intern registration under this chapter, a person must:

(1) be at least 18 years of age;

(2) have a high school diploma or its equivalent;

(3) successfully complete 270 classroom hours of chemical dependency curricula as described in §150.107 of this title (relating to Standards for 270 Educational Hours) or meet the educational waiver contained in §150.109 of this title (relating to Education and Experience Exemptions/Waivers);

(4) complete 300 hours of approved supervised field work practicum as described in §150.108 of this title (relating to Practicum Standards) or meet the educational waiver contained in §150.109 of this title (relating to Education and Experience Exemptions/Waivers);

(5) pass the criminal history standards described in §150.115 of this title (relating to Criminal History Standards);

(6) sign a written agreement to abide by the ethical standards contained in §150.121 of this title (relating to Ethical Standards); and

(7) be worthy of the public trust and confidence as determined by the Commission.

§150.107.Standards for 270 Educational Hours.

(a) At least 135 (nine semester hours) of the education hours must be specific to substance use disorders and their treatment. The remaining 135 hours may be specific or related to chemical dependency counseling. Related education hours may include courses in psychology, upper division sociology, counseling, mental health, behavioral science, psychiatric nursing, ethics, and rehabilitation counseling.

(b) The education shall be provided by a proprietary school, or an accredited institution of higher education.

(c) Continuing education and extended learning courses offered by institutions of higher education are not acceptable unless the curriculum follows the Workforce Education Curriculum Manual and meets the standards equivalent to a credit course.

(d) Educational hours obtained at a proprietary school must follow the curriculum for Transdisciplinary Foundations for Addictions Professional outlined in the KSAs:

(1) Understanding Addiction;

(2) Treatment Knowledge;

(3) Application to Practice; and

(4) Professional Readiness.

(e) The Commission shall not accept hours unless documented with a passing grade on an official transcript from the school. The applicant shall submit additional information requested by the Commission if needed to verify the content of a course.

§150.108.Practicum Standards.

(a) The practicum shall be completed under the administration of a proprietary school or an accredited institution of higher education.

(b) The applicant must complete the practicum under the administration of a single school.

(c) The Commission shall not accept a practicum without an official transcript from the school and a letter from the school's educational coordinator or chair verifying that the practicum was completed in the field of substance abuse.

(d) Practicum hours may be paid or voluntary.

(e) The practicum shall be delivered according to a written training curriculum that provides the student with an orientation to treatment services and exposure to treatment activities in each of the KSA dimensions. The practicum must include the intern observing treatment delivery and the intern providing services under direct observation. The practicum shall include at least 20 hours of experience in each of the KSA dimensions.

(f) All training shall be provided by qualified credentialed counselors (QCCs).

§150.109.Education and Experience Exemptions/Waivers.

(a) Applicants holding a degree in chemical dependency counseling, sociology, psychology, or any other degree approved by the Commission are exempt from the 270 hours of education and the 300 hour practicum. The applicant must submit an official college transcript with the official seal of the college and the signature of the registrar. Degree programs approved by the Commission include baccalaureate, masters, or doctoral degrees with a course of study in human behavior/development and service delivery.

(b) The Commission may waive the 4,000 hours of supervised work experience for individuals who hold a masters or doctoral degree in social work or a masters or doctoral degree in a counseling-related field with 48 semester hours of graduate-level courses. Counseling related degrees shall be reviewed on a case-by-case basis. The applicant shall submit an official college transcript with the official seal of the college and the signature of the registrar, and any other related documentation requested by the Commission.

§150.110.Requirements for Licensure.

To be eligible for a license under this chapter, a person must:

(1) complete the application related to §150.105 of this title (relating to Licensure Application Standards and Registration);

(2) meet the requirements to be a counselor intern in §150.106 of this title (relating to Requirements for Counselor Intern Requirements);

(3) hold an associate degree or more advanced degree with a course of study in human behavior/development and service delivery, with the exception of:

(A) those applicants who meet the requirements for intern registration and submit an application to the Commission by September 1, 2004, and

(B) those counselors who are renewing a continuous license.

(4) complete 4,000 hours of approved supervised experience working with chemically dependent persons as described in §150.111 of this title (relating to Standards for Supervised Work Experience);

(5) pass the written chemical dependency counselor examination approved by the Commission;

(6) submit an acceptable written case presentation to the test administrator;

(7) pass an oral chemical dependency counselor examination approved by the Commission; and

(8) submit two letters of recommendation from LCDCs.

§150.111.Standards for Supervised Work Experience.

(a) An applicant must be registered with the Commission as described in §§150.105 and 150.106 of this title (relating to Licensure Application Standards and Registration and Requirements for Counselor Intern Registration) before accumulating supervised work experience.

(b) All supervised work experience obtained in Texas must be completed at a registered clinical training institution (CTI).

(c) Work experience must be documented on the Commission's supervised work experience documentation form and signed by the agency's CTI coordinator.

(1) All hours included in the documented supervised work experience must be performed within the KSA dimensions.

(2) The supervised work experience form must be accompanied by the intern's job description reflecting duties in the KSA dimensions.

(d) Out-of-state work experience will be accepted only if the following conditions are met.

(1) The applicant is either certified or licensed or in the process of seeking licensure or certification in the other state.

(2) The standards for clinical supervision of work experience must meet or exceed Texas standards and be outlined in the governing agency's rules or standards. A copy of the governing rules or standards must be submitted with the other required documentation of supervised work experience.

(3) The supervised work experience must be documented on the Commission's supervised work experience form or a comparable form used by the governing agency of the other state.

(e) Supervised work experience may be paid or voluntary.

(f) An intern must complete all supervised work experience, pass the written and oral examination and complete an approved associate degree within five years from the date of registration.

(g) A person who has completed the 4,000 hours of supervised work experience and is currently eligible to take or retake the examination is a graduate intern and may continue to provide chemical dependency services under the auspices of a registered clinical training institution during the five-year registration period.

(h) It is the applicant's responsibility to verify that the training institution is registered with the Commission. The Commission shall not accept hours from an unregistered provider. A list of registered CTIs is available on the Commission's web site.

§150.112.Examination.

(a) To be eligible for examination, an applicant shall:

(1) be registered with the Commission as an intern;

(2) submit an acceptable case study to the test administrator; and

(3) pay the examination fee to the test administrator.

(b) All required documentation and fees must be submitted to the test administrator by the specified deadlines. It is the applicant's responsibility to obtain testing information.

(c) An applicant may only take the examination four times, and all testing must be completed within five years from the date of registration. An applicant must take the written and oral portions of the examination together unless the applicant has already passed one part of the examination.

(d) If an applicant does not pass both parts of the examination within five years of the date of registration, does not complete the approved associate degree and/or does not complete the required 4,000 hours of supervised work experience, the Commission shall deny the application.

(1) A person whose license application has been denied is no longer an intern or a graduate and cannot provide chemical dependency counseling services under the auspices of a clinical training institution.

(2) A person whose application has been denied under this section may reapply for licensure only after completing 24 semester hours of course work pre-approved by the Commission at an institution of higher education. The new application shall not be considered complete without an official college transcript documenting the required coursework.

(3) If the Commission accepts the new application, the person must complete the remaining requirements for licensure and may take only the failed portion(s) of the examination an additional three times. Transition standards will not apply. The additional tests must be completed within three years of the new date of registration. During this period, the applicant may provide chemical dependency counseling services as an intern under the auspices of a registered clinical training institution.

§150.113.Issuing Licenses.

(a) When the applicant has met all requirements for licensure and paid the licensure fee, the Commission will issue a license within 45 days.

(b) LCDCs shall keep current versions of the certificate of licensure and the Commission's public complaint notice prominently displayed in their place of business.

(c) A licensee shall not duplicate the licensure certificate to obtain a second copy of the license. A licensee can obtain an official duplicate certificate from the Commission by submitting a written request and the fee specified in §150.104 of this title (relating to Fees).

(d) The Commission will replace a lost or damaged certificate if the licensee provides:

(1) the remnants of the original license (if damaged);

(2) the original license and copy of legal documents (for a name change);

(3) the original license (for printing error); or

(4) a notarized statement if the license has been lost, stolen, or destroyed.

(e) A license replaced because of a printing error or mail damage will be replaced without cost, but all other license replacements require a fee, as specified in §150.104 of this title (relating to Fees). The fee shall be paid in advance with a money order, commercial check, or cashier's check.

(f) LCDCs shall notify the Commission in writing within 30 days of a change in name or address.

(g) The licensee shall return the license if it is suspended or revoked.

(h) The licensee shall remain knowledgeable of the current rules in this chapter, including rule changes.

§150.114.Licensure through Reciprocity.

(a) A person seeking application through reciprocity shall submit:

(1) a copy of the reciprocal license or certification;

(2) the Commission's current reciprocity application which has been completed, signed, dated, and notarized;

(3) two sets of fingerprints on cards issued by the Commission;

(4) a recent full-face wallet-sized photograph of the applicant;

(5) two letters of recommendation; and

(6) the application fee and the background investigation fee.

(b) The applicant shall meet the criminal history standards described in §150.115 of this title (relating to Criminal History Standards).

(c) The Commission may issue a license based on reciprocity if the individual is currently licensed or certified by another state as a chemical dependency counselor.

(d) The Commission shall not issue a license based on reciprocity unless it finds that the licensing or certification standards of the state of origin are at least substantially equivalent to the requirements for licensure of this chapter.

(e) An applicant who does not qualify for reciprocity may apply for licensure through examination and is subject to the same standards as other applicants.

§150.115.Criminal History Standards.

(a) The Commission reviews the criminal history of every applicant for licensure. Reviews are conducted when:

(1) an applicant registers with the Commission as an intern;

(2) a LCDC applies for license renewal; and

(3) the Commission receives information that a counselor or intern has been charged, indicted, placed on deferred adjudication, community supervision, or probation, or convicted of an offense described in subsection (d) of this section.

(b) An applicant shall disclose and provide complete information about all misdemeanor and felony charges, indictments, deferred adjudications, episodes of community supervision or probation, and convictions. Failure to make full and accurate disclosure will be grounds for immediate application denial, disciplinary action, or license revocation.

(c) The Commission obtains criminal history information from the Texas Department of Public Safety, including information from the Federal Bureau of Investigations (FBI).

(d) The Commission determines whether an offense is directly related to the duties and responsibilities of a LCDC. The Commission has identified the following related offenses and categorized them according to the seriousness of the offense. If an offense is not listed in one of these categories and the Commission determines that it is directly related to chemical dependency counseling, the Commission shall determine the appropriate category.

(1) Category X includes:

(A) capital offenses;

(B) sexual offenses involving a child victim;

(D) multiple counts of felony sexual offenses involving any adult victim; and

(E) homicide 1st degree.

(2) Category I includes:

(A) kidnapping;

(B) arson;

(D) felony sexual offenses involving an adult victim who is not a client (single count); and

(E) attempting to commit crimes in Category I or X.

(3) Category II includes felony offenses that result in actual or potential harm to others and/or animals not listed separately in this section.

(4) Category III includes:

(A) class A misdemeanor alcohol and drug offenses;

(B) class A misdemeanor offenses resulting in actual or potential harm to others or animals;

(D) other felony offenses that do not result in actual or potential harm to others and/or animals.

(5) Category IV includes:

(A) class B misdemeanor alcohol and drug offenses; and

(B) class B misdemeanor offenses resulting in actual or potential harm to others or animals.

(e) The Commission shall deny the initial or renewal license application of a person who has been convicted or placed on community supervision in any jurisdiction for a:

(1) category X offense during the person's lifetime;

(2) category I offense during the 15 years preceding the date of application;

(3) category II offense during the ten years preceding the date of application;

(4) category III offense during the seven years preceding the date of application; or

(5) category IV offense during the five years preceding the date of application.

(f) The Commission shall deny the intern registration application of a person who has been convicted or placed on community supervision in any jurisdiction for a:

(1) category X offense during the person's lifetime;

(2) category I offense during the ten years preceding the date of application;

(3) category II offense during the five years preceding the date of application;

(4) category III offense during the two years preceding the date of application; or

(5) category IV offense during the year preceding the date of application.

(g) The Commission shall defer action on the application of a person who has been charged, indicted, or placed on deferred adjudication, community supervision, or probation for an offense described in subsection (d) of this section. The person may reapply when:

(1) the charges are dropped or the person is found not guilty; or

(2) the timeframes established in subsection (d) of this section have been met.

(h) The Commission shall suspend a counselor's license or an intern's registration if the Commission receives notice from the Texas Department of Public Safety or another law enforcement agency that the individual has been charged, indicted, placed on deferred adjudication, community supervision, or probation, or convicted of an offense described in subsection (d) of this section.

(1) The Commission shall send notice stating the grounds for summary suspension by certified mail to the license holder at the address listed in the Commission's records. The suspension is effective five days after the date of mailing.

(2) The Commission shall restore the person's license upon receipt of official documentation that the charges have been dismissed or the person has been found not guilty.

(i) A person whose license has been denied or suspended under this section may only appeal the action if:

(1) the person was convicted or placed on community supervision; and

(2) the appeal is based on the grounds that the timeframes defined in subsection (d) of this section have been met.

§150.116.License Expiration and Renewal.

(a) A license issued under this chapter is valid for two years, or until the expiration date printed on the license. The licensee is responsible for renewing the license in a timely manner. The Commission shall send the licensee a renewal notice, but failure to receive notice from the Commission does not waive or extend renewal deadlines.

(b) To renew a license, the counselor shall:

(1) send a complete renewal application to the Commission;

(2) pay the renewal application fee, the license fee, and the background investigation fee;

(3) submit two sets of fingerprints completed according to Commission instructions with cards issued by the Commission (if the counselor has not previously submitted fingerprint cards for initial licensure through examination or licensure renewal);

(4) meet the criminal history standards described in §150.115 of this title (relating to Criminal History Standards); and

(5) complete all required continuing education as described in section §150.117 of this title (relating to Continuing Education Standards).

(c) A LCDC who is also licensed as an LMSW, LMFT, LPC, physician, or psychologist in the State of Texas shall complete at least 24 hours of continuing education during each two-year licensure period. The 24 hours of education must include the specific courses required in subsection (f) and, if applicable, in subsection (g). The individual must submit a copy of the active non-LCDC licensure certificate to be eligible for this provision.

(d) A LCDC who does not meet the criteria in subsection (c) of this section must complete at least 60 hours of continuing education.

(e) Continuing education hours must include at least three hours of ethics training and at least six hours of training (total) in HIV, Hepatitis C, and sexually transmitted diseases.

(f) If an individual's job duties include clinical supervision, required hours of continuing education must include three hours of clinical supervision training.

(g) Renewal fees are due on or before the expiration date. A licensee who submits a late renewal application shall pay a penalty fee in addition to the renewal application and licensure fees, as provided in §150.104 of this title (relating to Fees).

(h) A license cannot be renewed more than one year after the date of expiration. To obtain a new license, the person shall comply with the requirements and procedures for obtaining an initial license. Everyone who applies for a new license under this subsection must pass the written and oral examinations, with one exception. If the person was licensed in Texas, moved to another state, and is currently licensed and has been in practice in the other state for the two years preceding application, the person may renew an expired license without reexamination. The person must pay a fee that is equal to two times the required renewal fee.

(i) A person whose license has expired cannot offer or provide chemical dependency counseling services as defined by the KSAs, represent himself or herself as an LCDC, or act in the capacity of a QCC.

(j) A licensee who teaches a qualifying continuing education course shall receive the same number of hours as students attending the course. Only one set of hours can be accrued for a single curriculum and no more than 30 hours of CE credit will be granted for courses taught by the applicant.

§150.117.Continuing Education Standards.

(a) The Commission will accept continuing education (CE) hours that meet the criteria in this section. Hours that do not meet these criteria may be evaluated on a case-by-case basis.

(b) Subject to Commission review, the Commission will accept continuing education credits from:

(1) recognized State boards, including, but not limited to the Texas State Boards of Social Work and Professional Counselor Examiners;

(2) the National Association of Alcohol and Drug Abuse Counselors; and

(3) the Texas Certification Board for Addiction Professionals.

(c) All continuing education hours must be specific to substance use disorders and their treatment or related to chemical dependency counseling as defined by the KSA dimensions. Related education hours may include courses in psychology, sociology, counseling, mental health, behavioral science, psychiatric nursing, ethics, and rehabilitation counseling.

(d) For counselors who live out of state, the Commission will also accept continuing education hours approved by other state and Federal agencies.

(e) Continuing education certificates must contain:

(1) applicant's name and license number;

(2) date CE hours were completed;

(3) number of CE hours assigned to each course;

(4) CE course title;

(5) educational provider number, if applicable;

(6) sponsoring agency name; and

(7) signature of instructor or coordinator.

(f) The Commission will also accept education hours from an accredited college or university.

(1) College transcripts must contain the official seal of the college and the signature of the registrar.

(2) One hour of college credit is equivalent to 15 CE hours.

(g) Independent study or distance learning courses must be guided and monitored by the instructor and include an evaluation of performance and/or participation verification. In addition, the course must be structured so that students have access to faculty or instructors for questions and assistance in the completion of such course work.

(h) If a counselor earns more than the required number of hours during a two-year licensure period, up to one third of the required hours may be carried forward into the following licensure period.

§150.118.Inactive Status.

(a) A licensee may request to have his or her license placed on inactive status by submitting a written request and paying the inactive fee before the license expires. Inactive status shall not be granted unless the license is current and in good standing, with no pending investigations or disciplinary actions.

(b) A person on inactive status cannot perform activities outlined in the KSA dimensions, represent himself or herself as an LCDC, or act in the capacity of a QCC. A person is subject to investigation and action during the period of inactive status.

(d) To return to active status, the person shall submit a written request to reactivate the license, a completed renewal application form, the renewal application fee and the license renewal fee, and documentation of 30 hours of continuing education within the inactive status period.

(e) An inactive license will automatically expire at the end of the two-year period.

§150.119.Documentation.

(a) The rules in this section apply only to counseling records of a counselor's private practice.

(b) The counselor shall establish and maintain a record for every client at the time of initial service delivery. The client record shall include:

(1) client identifying information;

(2) assessment results, including a statement of the client's problems and/or diagnosis;

(3) plan of care;

(4) documentation of all services provided, including date, duration, and method of delivery; and

(5) a description of the client's status at the time services are discontinued.

(d) All entries shall be permanent, legible, accurate, and completed in a timely manner.

(e) All documents and entries shall be dated and authenticated. Authentication of electronic records shall be by a digital authentication key.

(f) When it is necessary to correct a record, the error shall be marked through with a single line, dated, and initialed by the counselor.

(g) The counselor shall protect all client records and other client-identifying information from destruction, loss, tampering, and unauthorized access, use or disclosure. Electronic client information shall be protected to the same degree as paper records and shall have a reliable backup system.

(h) The counselor shall not deny clients access to the content of their records except as provided by TEX. HEALTH & SAFETY CODE ANN. §611.0045 (Vernon 2001 & Supp. 2004).

(i) Client records shall be kept for at least six years. Records of adolescent clients shall be kept for at least five years after the client turns 18.

§150.120.Counseling Through Electronic Means.

(a) The rules in this section apply only to a counselor in private practice using the Internet or counseling by telephone.

(b) The counselor must reside in and perform the services from Texas.

(d) The counselor is subject to the statutes of other states and countries where the client may reside or receives services by electronic means. Such statutes may limit the counselor's practice.

(e) The counselor's provision of services by electronic medium must comply with 42 C.F.R. pt. 2 and the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

(f) The counselor must be able to verify the identification of the client and ensure the client's appropriate age.

(g) If a counselor uses the Internet as the electronic means by which counseling is provided or transfers data through the Internet, the counselor must comply with the following:

(1) data may only be transferred using at least a 128-encryption;

(2) e-mail communication is restricted relating to client information and documentation; and

(3) the counselor must provide technical backup for system problems by providing a phone number to the client to call for technical support and a contingency plan for the client when a technical problem occurs.

(h) The counselor must provide services using audio and video in real time.

(i) The counselor must provide a description of all services offered to the client in writing and describe who is appropriate for the services. The description must include:

(1) a grievance procedure and provide a link to the Commission for filing a complaint when using the Internet and the toll-free number for the Commission when counseling by telephone;

(2) the counselor's credentials, education level, and training;

(3) a link to the licensure verification page when using the Internet and the toll-free number for the Commission when counseling by telephone;

(4) the difference between electronic counseling and traditional counseling; and

(5) the potential risk regarding clinical issues, security and confidentiality.

(j) Services may only be offered by licensed counselors. Counselor interns may not provide counseling by electronic medium.

(k) The counselor must provide an emergency contact person and phone number and emergency procedures to the client in writing.

§150.121.Ethical Standards.

(a) All applicants and LCDCs shall comply with these ethical standards.

(b) The LCDC shall not discriminate against any client or other person on the basis of gender, race, religion, age, national origin, disability, sexual orientation, or economic condition.

(d) The LCDC shall:

(1) promptly report to the Commission any suspected, alleged, or substantiated incidents of abuse, neglect, or exploitation committed by self or other LCDCs or registered counselor interns;

(2) promptly report to the Commission violations of TEX. OCC. CODE ANN. ch. 504 (Vernon 2004), or rules adopted under the statute, including violations of this section by self or others, unless making such a report would violate Federal confidentiality regulations found in 42 C.F.R. pt. 2;

(3) recognize the limitations of his or her ability and shall not offer services outside the counselor's scope of practice or use techniques that exceed his or her professional competence. In the course of treating the substance abuse/dependence issues of a client, the LCDC may independently address family issues, co-occurring mental health issues and physical and sexual abuse issues of a client if the counselor demonstrates:

(A) 45 hours of education in each area, and

(B) 2,000 hours of clinically supervised post licensure work experience by a qualified professional; and

(4) try to prevent the practice of chemical dependency counseling by unqualified or unauthorized persons.

(e) The LCDC shall not engage in the practice of chemical dependency counseling if impaired by, intoxicated by, or under the influence of chemicals, including alcohol.

(f) The LCDC shall uphold the law and refrain from unprofessional conduct. In so doing, the LCDC shall:

(1) comply with all applicable laws and regulations;

(2) not make any claim, directly or by implication, that the counselor possesses professional qualifications or affiliations that the counselor does not possess;

(3) include their current credentials when signing all professional documents;

(4) not mislead or deceive the public or any person; and

(5) refrain from any act which might tend to discredit the profession.

(g) The LCDC shall:

(1) report information fairly, professionally, and accurately to clients, other professionals, the Commission, and the general public;

(2) maintain appropriate documentation of services provided; and

(3) provide responsible and objective training and supervision to interns and subordinates under the counselor's supervision. This includes properly documenting supervision and work experience and providing supervisory documentation needed for licensure.

(h) In any publication, the LCDC shall give written credit to all persons or works which have contributed to or directly influenced the publication.

(i) The LCDC shall respect a client's dignity, and shall not engage in any action that may injure the welfare of any client or person to whom the counselor is providing services. The LCDC shall:

(1) make every effort to provide access to treatment, including advising clients about resources and services, taking into account the financial constraints of the client;

(2) remain loyal and professionally responsible to the client at all times, disclose the counselor's ethical code of standards, and inform the client of the counselor's loyalties and responsibilities;

(3) not engage in any activity which could be considered a professional conflict, and shall immediately remove himself or herself from such a conflict if one occurs;

(4) terminate any professional relationship or counseling services which are not beneficial, or is in any way detrimental to the client;

(5) always act in the best interest of the client;

(6) not abuse, neglect, or exploit a client;

(7) not have sexual contact with or enter into a personal or business relationship with a client (including any client receiving services from the counselor's employer) for at least two years after the client's services end;

(8) not request a client to divulge confidential information that is not necessary and appropriate for the services being provided; and

(9) not offer or provide chemical dependency counseling or related services in settings or locations which are inappropriate, harmful to the client or others, or which would tend to discredit the profession of chemical dependency counseling.

(j) The LCDC shall protect the privacy of all clients and shall not disclose confidential information without express written consent, except as permitted by law. The LCDC shall remain knowledgeable of and obey all State and Federal laws and regulations relating to confidentiality of chemical dependency treatment records, and shall:

(1) inform the client, and obtain the client's consent, before tape-recording the client, allowing another person to observe or monitor the client;

(2) ensure the security of client records;

(3) not discuss or divulge information obtained in clinical or consulting relationships except in appropriate settings and for professional purposes which clearly relate to the case;

(4) avoid invasion of the privacy of the client;

(5) provide the client his/her rights regarding confidentiality, in writing, as part of informing the client in any areas likely to affect the client's confidentiality; and

(6) ensure the data requested from other parties is limited to information that is necessary and appropriate to the services being provided and is accessible only to appropriate parties.

(k) The LCDC shall inform the client about all relevant and important aspects of the professional relationship between the client and the counselor, and shall:

(1) in the case of clients who are not their own consenters, inform the client's parent(s) or legal guardian(s) of circumstances which might influence the professional relationship;

(2) not enter into a professional relationship with members of the counselor's family, close friends or associates, or others whose welfare might be jeopardized in any way by such relationship;

(3) not establish a personal relationship with any client (including any individual receiving services from the counselor's employer) for at least two years after the client's services end;

(4) neither engage in any type or form of sexual behavior with a client (including any individual receiving services from the counselor's employer) for at least two years after the client's services end nor accept as a client anyone with whom they have engaged in sexual behavior; and

(5) not exploit relationships with clients for personal gain.

(l) The LCDC shall treat other professionals with respect, courtesy, and fairness, and shall:

(1) refrain from providing or offering professional services to a client who is receiving chemical dependency treatment from another professional, except with the knowledge of the other professional and the consent of the client, until treatment with the other professional ends;

(2) cooperate with the Commission, professional peer review groups or programs, and professional ethics committees or associations, and promptly supply all requested or relevant information unless prohibited by law; and

(3) ensure that his/her actions in no way exploit relationships with supervisees, employees, students, research participants or volunteers.

(m) Prior to treatment, the LCDC shall inform the client of the counselor's fee schedule and establish financial arrangements with a client. The counselor shall not:

(1) charge exorbitant or unreasonable fees for any treatment service;

(2) pay or receive any Commission, consideration, or benefit of any kind related to the referral of a client for treatment;

(3) use the client relationship for the purpose of personal gain, or profit, except for the normal, usual charge for treatment provided; or

(4) accept a private professional fee or any gift or gratuity from a client if the client's treatment is paid for by another funding source, or if the client is receiving treatment from a facility where the counselor provides services (unless all parties agree to the arrangement in writing).

§150.122.Actions Against a License.

(a) Actions against a license include:

(1) refusal to issue or renew a license;

(2) suspension or revocation of a license;

(3) placing a counselor on probation if the counselor's license has been suspended; and

(4) reprimand of a license holder.

(b) The Commission shall take action against a license for:

(1) violating or assisting another to violate the statute or these rules;

(2) circumventing or attempting to circumvent the statute or these rules;

(3) participating, directly or indirectly, in a plan to evade the statute or these rules;

(4) engaging in false, misleading, or deceptive conduct as defined by TEX. BUS. & COM. CODE ANN. §17.46 (Vernon 2002 & Supp. 2004);

(5) engaging in conduct that discredits or tends to discredit the profession of chemical dependency counseling;

(6) revealing or causing to be revealed, directly or indirectly, a confidential communication made to the LCDC by a client or recipient of services, except as required by law;

(7) having a license to practice chemical dependency counseling in another jurisdiction refused, suspended, or revoked for a reason that the Commission finds would constitute a violation of this chapter;

(8) refusing to perform an act or service for which the person is licensed to perform under this chapter on the basis of the client's or recipient's sex, race, religion, age, national origin, or handicaps; or

(9) committing an act for which liability exists under TEX. CIV. PRAC. & REM. CODE ANN. ch. 81 (Vernon 1997 & Supp. 2004).

(c) The Commission will determine the length of the probation or suspension. The Commission may hold a hearing at any time and revoke the probation or suspension.

(d) The Commission may impose an administrative penalty against a licensee who violates TEX. OCC. CODE ANN. ch. 504 (Vernon 2004) or a rule or order adopted under the statute.

(e) Surrender or expiration of a license does not interrupt an investigation or disciplinary action. The individual is not eligible to regain the license until all outstanding investigations, disciplinary actions, or hearings are resolved.

(f) An individual whose license has been revoked is not eligible to apply for licensure until two years have passed since the date of revocation. During the period of revocation, the individual cannot become a counselor intern. The individual is not eligible to reapply for licensure unless he/she petitions the Commission and demonstrates that sufficient time has elapsed to allow the events leading to revocation to no longer serve as a basis for denial of application. The Commission may require certain conditions be met, before it grants an individual's petition for re-licensure.

(g) The Commission shall deny, suspend, and/or refuse to renew the license of a person based on criminal history as provided in §150.115 of this title (relating to Criminal History Standards).

(h) The Commission shall implement a final order to suspend the license of a counselor for failure to pay child support as provided by the TEX. FAM. CODE ANN. ch. 232 (Vernon 1996).

§150.123.Clinical Training Institution (CTI) Registration.

(a) To become a registered clinical training institution (CTI), an organization shall:

(1) provide activities in an array of the KSA dimensions, including assessment and counseling;

(2) serve a predominantly substance-abusing population;

(3) employ a full time QCC as the CTI coordinator;

(4) be in good standing with applicable licensing and regulatory agencies;

(5) agree to comply with applicable rules in this chapter; and

(6) submit a complete application.

(b) The program shall receive the registration letter and training program number before training begins. Approval allows the organization to provide clinical training at any of its programs or sites with relevant services.

(c) The approval is valid for two years. The CTI shall reapply every two years by submitting a completed application form. The Commission may mail a courtesy notice, but it is the program's responsibility to reapply at least 45 days before the expiration date.

(d) The CTI shall notify the Commission in writing within 30 days of the following changes:

(1) a change in the CTI coordinator;

(2) a change in the organization's name or mailing address; and

(3) closure of the training program.

(e) The Commission may withdraw approval if the CTI fails to comply with all applicable Commission rules.

§150.124.Clinical Training Institution (CTI) Standards.

(a) The training program shall appoint a single training coordinator who is a qualified credentialed counselor (QCC). The training coordinator shall oversee all training activities and ensure compliance with Commission requirements and rules.

(b) The Clinical Training Institution (CTI) shall establish admission criteria. No applicant shall be admitted without:

(1) documentation that the applicant is registered with the Commission; and

(2) a signed ethics agreement which is consistent with the LCDC ethical standards in §150.121 of this title (relating to Ethical Standards).

(c) The CTI shall establish the following level system to classify interns according to hours of supervised work experience:

(1) Level I: 0-1,000 hours of work experience;

(2) Level II: 1,001-2000 hours of work experience;

(3) Level III: 2,001-4,000 hours of work experience; and

(4) Graduate Status: over 4,000 hours of work experience.

(d) The CTI shall have an organizational structure that includes all intern levels. The CTI shall designate each intern's level in writing and provide the intern with a copy of the documentation.

(e) All interns must be under the direct supervision of a QCC as described in §150.125 of this title (related to Direct Supervision of Interns).

(f) The CTI shall provide each Level I, II, and III intern with reading assignments and training activities for the supervised work experience that includes material in each KSA dimension.

(g) The CTI shall use the Commission's KSA evaluation tool to structure the intern's 4,000 hours of supervised work experience.

(1) The clinical supervisor and the intern shall set weekly objectives based on areas targeted for improvement.

(2) The supervisor shall provide reading, computer, and/or video assignments that address areas needing improvement. The CTI shall allow the intern two hours per month to complete these assignments.

(3) The clinical supervisor shall monitor the intern's progress and provide verbal and written feedback during weekly supervision meetings.

(4) The intern shall complete a written KSA self-evaluation during the first 50 hours of work experience.

(5) The clinical supervisor and the intern shall complete and discuss a written KSA evaluation at the completion of each level of experience (after 1,000 hours, 2,000 hours, and 4,000 hours).

(h) The CTI shall not allow a Level I, II, or III intern to accrue more than 40 hours of work experience per week.

(i) A person who has completed the 4,000 hours of supervised work experience and is currently eligible to take or retake the examination is a graduate intern and may continue to provide chemical dependency counseling services at a registered clinical training institution during the five-year registration period.

(j) The CTI coordinator shall send the following documents directly to the Commission and provide the intern with copies within ten working days from the date the intern completes the required 4,000 hours or leaves the agency:

(1) the supervised work experience form signed by the CTI Coordinator; and

(2) a copy of the intern's job description showing job responsibilities within the KSAs.

(k) All activities counted towards the intern's supervised work experience shall be within the scope of chemical dependency counseling services as defined by the KSAs.

(l) The CTI shall not approve hours for which the intern fails to substantially complete related activities and supervision assignments. Any failure to complete assignments shall be documented on the weekly supervision form.

(m) The CTI shall give each student the Commission's student CTI assessment form with instructions to complete the assessment and mail it directly to the Commission's counselor licensure department.

(n) The CTI shall use all current forms mandated by the Commission.

(o) The CTI shall ensure that each clinical supervisor obtains three hours of continuing education in clinical supervision every two years.

(p) The CTI shall inform students of testing requirements and procedures, as well as testing schedules and information provided by the Commission.

(q) The CTI shall ensure that interns designate their status by using "intern" or "CI" when signing client record entries.

(r) The CTI shall maintain the following documentation for four years in the student files, to include:

(1) letter of registration;

(2) ethics agreement signed by the student;

(3) copies of KSA evaluations;

(4) documentation of all supervision activities;

(5) documentation of intern levels and accumulated hours; and

(6) copy of the supervised work experience form.

(s) The CTI shall give the student a copy of all information contained in the intern file when the intern completes the required supervised work experience and/or leaves the agency.

§150.125.Direct Supervision of Interns.

(a) Direct supervision is oversight and direction of a counselor intern provided by a QCC that complies with the provisions in this section.

(b) The QCC shall assume responsibility for the actions of the intern within the scope of the intern's clinical training.

(c) If the intern has less than 2,000 hours of supervised work experience, the supervisor must be on site when the intern is providing services. If the intern has at least 2,000 hours of documented supervised work experience, the supervisor may be on site or immediately accessible by telephone.

(d) During an intern's first 1,000 hours of supervised work experience (Level I), the CTI coordinator or QCC designee shall:

(1) be on duty at the program site where the intern is working;

(2) observe and document the intern performing assigned activities at least once every two weeks (or 80 hours);

(3) provide and document one hour of face-to-face individual or group supervision each week; and

(4) sign off on all clinical assessments, treatment plans, and discharge summaries completed by the intern.

(e) During an intern's second 1,000 hours of supervised work experience (Level II), the CTI coordinator or QCC designee shall:

(1) be on duty at the program site where the intern is working;

(2) observe and document the intern performing assigned activities at least once every month (160 hours);

(3) provide and document one hour of face-to-face individual or group supervision each week; and

(4) sign off on all clinical assessments, treatment plans, and discharge summaries completed by the intern.

(f) During an intern's last 2,000 hours of required supervised work experience (Level III), the CTI coordinator or QCC designee shall:

(1) be available by phone while the intern is working;

(2) observe and document the intern performing assigned activities as determined necessary by the CTI coordinator;

(3) provide and document one hour of face-to-face individual or group supervision each week; and

(4) sign off on all clinical assessments, treatment plans, and discharge summaries completed by the intern.

(g) After an intern achieves graduate status, the CTI coordinator or QCC designee shall:

(1) be available by phone while the graduate intern is working;

(2) provide and document one hour of face-to-face individual or group supervision each week; and

(3) sign off on all clinical assessments, treatment plans, and discharge summaries completed by the graduate intern.

(h) A supervisor's schedule must allow an average of two hours of supervision-related activity per week per intern.

§150.126.Intern Violations.

(a) The CTI shall investigate all allegations that an intern has violated the ethical standards described in §150.121 of this title (relating to Ethical Standards).

(b) If the allegation is substantiated, the CTI shall take appropriate action. Action may include denying some or all of the intern's supervised work experience hours.

(1) abused, neglected, or exploited a service recipient;

(2) committed an ethical violation that results in actual or potential harm to a service recipient;

(3) engaged in illegal activity;

(4) falsified or destroyed documentation; or

(5) established a close personal or business relationship with a client outside the counseling relationship.

(d) The CTI shall deny all supervised work experience hours for an intern with a substantiated ethical violation described in subsection (c) of this section.

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 December 31, 2003.

TRD-200308959

For further information, please call: (512) 349-6607

Chapter 153. OFFENDER EDUCATION PROGRAMS

The Texas Commission on Alcohol and Drug Abuse (Commission) adopts the repeal of Chapter 153, §§153.1 - 153.8, 153.32 - 153.36, 153.41 - 153.44, and 153.51 - 153.55, concerning Offender Education Programs, without changes to the proposal as published in the August 29, 2003, issue of the Texas Register (28 TexReg 7277).

The repeal of Chapter 153 is necessary because the Commission is adopting new rules. The new rules have been reorganized to provide a more functional and logical framework that is more closely aligned with the rules of other agencies operating under the Health and Human Services Commission.

There were no comments regarding the repeal of these sections.

Subchapter A. GENERAL PROVISIONS AND PROCEDURES

40 TAC §§153.1 - 153.8

The repeal is adopted pursuant to Texas Health and Safety Code Annotated, §461.012(a)(15), which provides the Commission authority to adopt rules governing its functions and Texas Transportation Code, §521.374, Texas Alcoholic Beverage Code §106.115, and Texas Code of Criminal Procedure, Article 42.12, which provide the Commission authority to establish rules governing offender education programs.

The codes affected by the repeal are Chapter 461 of the Texas Health and Safety Code and §521.374 of the Texas Transportation Code, §106.115 of the Texas Alcoholic Beverage Code, and the Texas Code of Criminal Procedure, Article 42.12.

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 December 31, 2003.

TRD-200308960