TITLE 40.SOCIAL SERVICES AND ASSISTANCE

Part 2. DEPARTMENT OF ASSISTIVE AND REHABILITATIVE SERVICES

Chapter 109. DEAF AND HARD OF HEARING SERVICES

The Texas Health and Human Services Commission proposes amendments to Title 40, Part 2, Chapter 109, §§109.1, 109.5, 109.7, 109.33, 109.37, 109.41, 109.43, 109.201, 109.205, 109.209, 109.211, 109.213, 109.217, 109.221, 109.223, 109.229, 109.231, 109.233, 109.301, 109.317, 109.323, 109.327, 109.329, 109.339, 109.341, 109.343, 109.347, 109.349, 109.357, 109.359, 109.363, 109.369, 109.371, 109.373, 109.375, 109.501, 109.505, 109.701, 109.705, 109.707, 109.711, 109.771, 109.773, 109.777, 109.801, 109.803, 109.805, 109.903, 109.905, 109.909, 109.911, 109.913, 109.915, 109.917, 109.919, 109.921, 109.923, 109.925, 109.927, 109.929 and 109.931, of the rules of the Department of Assistive and Rehabilitative Services. The amendment to §109.911 of Chapter 109 is concerning passing grades on court interpreter licensing examinations. The amendment to §109.911 is being proposed to increase the minimum passing grade for the required examination on legal and court procedure skills and knowledge. The amendments to the remainder of the rules in Chapter 109 are administrative in nature, updating nomenclature to reflect the organizational restructuring from consolidation of the former Texas Commission for the Deaf and Hard of Hearing, into the Department of Assistive and Rehabilitative Services on March 1, 2004.

Bill Wheeler, Chief Financial Officer, Department of Assistive and Rehabilitative Services, estimates that for each year of the first five years that the amended rules will be in effect, there will be no material fiscal implications for state or local government.

Mr. Wheeler also estimates that for each year of the first five years the amended rules will be in effect, the public benefit anticipated as a result of adopting the proposed amendments will be the agency's compliance with House Bill 2292, 78th Legislature, Regular Session, and other existing provisions of law pertaining to provision of health and human services in Texas. There should be no material economic cost to persons who are required to comply with the rules as proposed for amendment. There should be no material effect to small or micro businesses. In accordance with Government Code §2001.022, the Health and Human Services Commission has determined that the proposed rule changes will not affect a local economy.

Comments on the proposal may be submitted to Roger Darley, Deputy General Counsel, Department of Assistive and Rehabilitative Services, 4800 North Lamar Boulevard, Suite 300, Austin, Texas 78756.

Subchapter A. SPECIALIZED TELECOMMUNICATIONS ASSISTANCE PROGRAM

1. DEFINITIONS

40 TAC §§109.1, 109.5, 109.7

These amendments are proposed under the Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.

No other statute, article, or code is affected by this proposal.

§109.1.Purpose.

The rules in this subchapter [ chapter ] shall be to set out the organization and administration and other general procedures and practices governing the operation of the specialized telecommunications assistance program.

§109.5.Definitions.

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

(1) Application--The form the department [ commission ] uses to gather and document information about an individual applying for assistance under this program.

(2) Financially Independent--When one or more otherwise eligible individuals reside in the same household but are not dependent upon one another for fiscal support.

(3) Basic specialized telecommunications equipment--A device or devices determined to be necessary and essential to facilitate basic access to the telephone system by a person with a disability.

(4) Basic specialized telecommunications service--A service or services determined to be necessary and essential to facilitate basic access to the telephone network by a person with a disability and which is less expensive than a specialized telecommunications device that is an option under this program and able to meet the same need.

(5) Person with a disability--A person who has a disability which impairs the individual's ability to effectively access the telephone network.

(6) Legal guardian--A person appointed by a court of competent jurisdiction to exercise the legal powers of another person.

(7) Program--Specialized Telecommunications Assistance Program (STAP).

(8) PUC--Public Utility Commission of Texas.

(9) Resident--An individual who resides within the state of Texas with the intent to remain in Texas.

(10) RTAC--Relay Texas Advisory Committee.

(11) USF--Universal Service Fund.

(12) Vendor--An entity or a person that is registered with the PUC and can sell basic specialized telecommunication devices or services as defined under this program.

(13) Voucher--A document of record to be exchanged with a vendor guaranteeing payment of up to but not exceeding the amount specific for the basic specialized telecommunications devices or services listed on the face of the voucher.

(14) Congregate setting--A situation when one or more otherwise eligible individuals reside in the same household.

§109.7.Determination of Basic Equipment or Service.

(a) In determining basic equipment or services available for voucher exchange, the following criteria shall be applied:

(1) The device or service must be for the purpose of telephone access;

(2) The device or service must mainly apply to telephone access functions and not to daily living functions unless a device or service for daily living functions enables an individual to access the telephone network and is less expensive than a device or service that mainly applies to telephone access functions;

(3) The device or service must serve to facilitate interactive communication that is functionally equivalent to that afforded by a basic telephone; and

(4) The service must be less expensive than a basic specialized telecommunications device approved for a voucher under this program and able to meet the same need.

(b) A list of available equipment or services will be maintained by the Department [ Commission ].

(c) Additional equipment or services added to the list in subsection (b) of this section after July 1, 2000 shall meet the criteria specified in subsection (a) of this section.

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

Filed with the Office of the Secretary of State on August 15, 2005.

TRD-200503396

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: September 25, 2005

For further information, please call: (512) 424-4050


2. PROGRAM ELIGIBILITY

40 TAC §§109.33, 109.37, 109.41, 109.43

These amendments are proposed under the Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.

No other statute, article, or code is affected by this proposal.

§109.33.Entities Authorized to Certify Disability.

(a) An applicant must be certified as a person with a disability which interferes with the person's ability to access the telephone network by one of the following:

(1) licensed hearing aid specialist;

(2) licensed audiologist;

(3) licensed physician or nurse;

(4) appropriate state or federal agency representative;

(5) state certified teacher of individuals who are deaf or hard of hearing;

(6) licensed speech pathologist;

(7) state certified teacher of individuals who are visually impaired;

(8) state certified teacher of individuals who are speech impaired;

(9) state certified special education teacher;

(10) director of appropriate agency contracted service provider or designated representative (council);

(11) director of appropriate independent living center; or

(12) licensed social worker.

(b) By certifying an application, a certifier is attesting to:

(1) being eligible to certify under the provisions of the law;

(2) having assessed the applicant's disability to determine that the applicant is eligible;

(3) having reviewed the information on the application to ensure that the form is completed properly and all requested information has been provided; and

(4) having determined that the applicant will be able to benefit from the specialized telecommunications devices or services requested on the application by access to the telephone network system.

(c) An application must be certified before the department [ commission ] can process and approve the application.

§109.37.Determination of Voucher Value.

(a) This program provides financial assistance to certain persons with a disability to enable the persons to purchase a specialized telecommunications device or service to provide telephone network access that is functionally equivalent to that enjoyed by individuals without disability. The value of each voucher is based on the cost of the basic device or service necessary for the applicant to access the telephone network. The value of the voucher will be determined on the basis of recommendations made by the Relay Texas Advisory Committee (RTAC) and upon approval from the Department [ Commission in open meeting ].

(b) The value of the voucher will be reviewed at least annually.

(c) The value of a voucher for unique needs situations, may be determined by staff research or recommendations made by the certifier. Upon approval of the [ executive ] director a special voucher may be issued.

§109.41.Vendor Listing.

A list of vendors registered with the State of Texas and recommended by the Public Utility Commission will be maintained by the Department [ Commission ].

§109.43.Client Confidentiality.

(a) All information made available to Department [ Commission ] employees in the course of the administration of the STAP, including lists of names and addresses is limited to use for purposes directly connected with the administration of the STAP.

(b) The Department [ Commission ] may not advertise, distribute, or publish the name or addresses or other related information received by the Department [ Commission ] about an individual who applies for assistance under STAP. Information concerning the STAP is exempted from disclosure under the public information act.

(c) All applicant information is the sole property of the Department [ Commission ].

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

Filed with the Office of the Secretary of State on August 15, 2005.

TRD-200503397

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: September 25, 2005

For further information, please call: (512) 424-4050


Subchapter B. BOARD FOR EVALUATION OF INTERPRETERS AND INTERPRETER CERTIFICATION

1. DEFINITIONS AND BOARD OPERATIONS

40 TAC §§109.201, 109.205, 109.209, 109.211, 109.213, 109.217, 109.221, 109.223, 109.229, 109.231, 109.233

These amendments are proposed under the Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.

No other statute, article, or code is affected by this proposal.

§109.201.Purpose.

The rules in this subchapter [ chapter ] shall set out the organization and administration and other general procedures governing the operation of the certification program for interpreters for the deaf and hard of hearing in the State of Texas.

§109.205.Severability.

If any rule of the Department [ Commission ] or the board, or portion thereof, is adjudged by a court to be invalid or if any rules of the Department [ Commission ] or the board, or portion thereof, is not a conformity with applicable statutes or administrative regulations of the state, that judgment does not affect the validity of the remainder of rules in this chapter.

§109.209.Definitions.

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

(1) ASL--American Sign Language.

(2) BEI--Board for Evaluation of Interpreters. The certifying board for the evaluation of interpreters under the Department of Assistive and Rehabilitative Services, Office for Deaf and Hard of Hearing Services [ Texas Commission for the Deaf and Hard of Hearing ].

(3) Board--The Board for Evaluation of Interpreters.

(4) Certification--The process of granting, denial, renewal, revocation, suspension, annulment, withdrawal, or amendment of a certificate.

(5) Court Interpreter--An individual who, on the basis of having successfully passed interpreter skills evaluation at Level III, IV, or V, is determined to have a particular skill level, or who has met requirements or qualifications for a particular skill level and has been so certified to practice interpreting in courts in the State of Texas by the board and office [ commission ], or other professional interpreter certifying association.

(6) CDI--Certified Deaf Interpreter Certificate issued by RID indicating intermediary/relay interpreter skills.

(7) CI--Certificate of Interpretation issued by RID certifying the ability to interpret between American Sign Language and spoken English in both sign-to-voice and voice-to-sign.

(8) CT--Certificate of Transliteration issued by RID certifying the ability to transliterate between signed English and spoken English in both sign-to-voice and voice-to-sign.

(9) CI/CT--Certification issued by RID certifying the comprehensive ability to manually and orally interpret and transliterate.

(10) CSC--Comprehensive Skills Certificate issued by RID certifying the ability to interpret and transliterate between ASL and Spoken English. This certificate is no longer issued but is still recognized.

(11) Communication Access Real-time Translation (CART)--the process of transcribing the spoken words of an oral proceeding to simultaneously project the words on a screen.

(12) Evaluation--The process by which the written and performance tests are administered to interpreter certification candidates to assess their knowledge and skill levels.

(13) IC--Interpretation Certificate issued by RID certifying the ability to interpret between ASL and spoken English. This certificate is no longer issued but is still recognized.

(14) Intermediary/relay interpreter--A certified interpreter who is deaf or hard of hearing who facilitates communication both linguistically and culturally between a deaf consumer and interpreter.

(15) Interpret/Interpretation--Process of conveying a message either from spoken language to ASL or from ASL to spoken language.

(16) Interpreter--An individual who, on the basis of an interpreter skills evaluation, is determined to have a particular skill level, or who has met requirements or qualifications for a particular skill level and has been so certified to practice interpreting in the State of Texas by the board and office [ commission ], or other professional interpreter certifying association.

(17) MCSC--Master Comprehensive Skills Certificate issued by RID certifying that an interpreter/transliterator had a CSC for at least four years and met the standards of a higher level of competence. This certificate is no longer issued but is still recognized.

(18) MSS Certificate--Morphemic Sign System certificate issued by the office [ commission ] certifying the ability to convey a message from spoken English into morphemic signs for English and from morphemic signs for English into spoken English.

(19) Oral certification--The oral certificate issued by the office [ commission ] certifying proficiency in oral transliterating. This certificate is no longer issued but is still recognized.

(20) OC:B--Oral Certification:Basic. The spoken-to-visible and visible-to-spoken certificate issued by the office [ commission ].

(21) OC:C--Oral Certification:Comprehensive. The spoken-to-visible and visible-to-spoken certificate issued by the office [ commission ].

(22) OC:S/V--The oral certification: spoken to visible issued by RID.

(23) OC:V--Oral Certification:Visible. The visible-to-spoken certificate issued by the office [ commission ].

(24) OC:V/S--The oral certification:visible to spoken issued by RID.

(25) OIC:C--The oral certification: comprehensive issued by RID.

(26) Person who is deaf--A natural person who has a hearing impairment, regardless of whether the person also has a speech impairment that inhibits the person's comprehension of communication with others.

(27) RID--The Registry of Interpreters for the Deaf, a national certifying body.

(28) RSC--Reverse Skills Certificate issued by RID certifying the ability to convey a message from ASL or a manual code for English into appropriate or acceptable English either signed or spoken. This certificate is no longer issued but is still recognized.

(29) SC:L--Specialist Certificate:Legal issued by RID certifying that an interpreter/transliterator is qualified to interpret/transliterate in a variety of legal settings.

(30) TC--Transliteration Certificate issued by RID certifying the ability to convey a message from spoken English into manually coded English, and manually coded English into spoken English.

(31) Test and evaluation--The written test or performance test taken by candidates for interpreter certification.

(32) Transliterator-A natural person representing himself or herself as an interpreter who performs services for the public in the capacity of transliteration.

(33) Transliterate/Transliteration--The process of conveying a message from either spoken language into a manually coded language or from manually coded language into a spoken language.

(34) TSID--The Texas Society of Interpreters for the Deaf.

(35) Written test--An instrument to test the standards of ethical behavior. Both basic and comprehensive tests are administered.

§109.211.Board Function.

The Board for Evaluation of Interpreters is an advisory committee appointed by the Department of Assistive and Rehabilitative Services, Office for Deaf and Hard of Hearing Services [ Texas Commission for the Deaf and Hard of Hearing ]. The Board is responsible for developing a program for certification of interpreters for the deaf in the State of Texas. The board shall also recommend to the office [ commission ]:

(1) any rules which are necessary for the performance of its duties or the program and which are consistent with the laws of this state;

(2) to establish levels of certification; to determine skill levels of interpreters; to train evaluators and to oversee the evaluations conducted by teams of evaluators; and to recommend interpreters for certification by the office [ commission ];

(3) to determine and establish: method of application; method of evaluation; develop necessary evaluation materials; develop appropriate criteria for scoring evaluations; establish the term of the certification; establish procedures for grievance; establish procedures for revocation, suspension, or cancellation of certification; establish procedures for certification renewal; and any other pertinent activities relevant to the certification of interpreters;

(4) to make recommendations to the office [ commission ] for approval regarding fees for evaluation and renewal of certification;

(5) to make recommendations to the office [ commission ] for approval to establish ad hoc committees to assist in the consideration of pertinent matters. These groups shall make recommendations to the board for its consideration and approval.

§109.213.Board Decisions.

The board's decision-making process is independent of the administrative staff of the office [ commission ]. The office [ commission ] has final decision on all actions.

§109.217.Board Membership.

The board is comprised of seven members appointed by the office [ commission ].

(1) Qualifications of members.

(A) At least two members of the board shall be persons who are deaf.

(B) All members of the board shall be residents of the State of Texas.

(C) Each hearing member of the board shall be certified at either Level III, Level IV, or Level V of the certification program of the office [ commission ] and be an interpreter who has engaged in the profession of interpreting for people who are deaf for at least three years out of the immediate past five years.

(D) A member of the board may be an evaluator and may evaluate as needed.

(E) Notwithstanding the requirements of subparagraphs (C) or (F) of this section, one person may be appointed as a member of the board if the person has training and expertise in linguistics and/or test development.

(F) Of the members who are deaf, at least one member shall be certified at Level III, Level IV, or Level V and one member may be a frequent consumer of interpreter services who demonstrates knowledge of the field of interpreting and linguistics.

(2) Term of members. Appointment is for three years. A member of the board who is appointed for a full three-year term is eligible for reappointment at the discretion of the office [ commission ].

(3) Vacancies. A vacancy on the board will be created through the expiration of a term, resignation of a member, incapacity of member to the extent that the member is unable to fulfill the obligations of the position, or absence of a member for three consecutively scheduled and announced meetings. To fill the vacancies, the board may review applications of candidates and recommend appointments of such candidates to the office [ commission ].

§109.221.Compensation.

Board members shall not receive any compensation for their services, but can receive reimbursement for expenses in performing the duties of the office, subject to current funding patterns of the office [ commission ]. Committee members must receive prior approval to be reimbursed for expenses incurred while attending a board meeting.

§109.223.Location and Maintenance of Records and Public Information Access.

(a) All official records of the board except files containing information considered confidential shall be open for public inspection during regular office hours as covered under the provisions of the Public Information Act, Texas Government Code, Chapter 552.

(b) The board shall maintain its office within the offices of the office [ commission ], preserve a record of its proceedings and minutes, and preserve a record of evaluations, and scoresheets for at least three years after the date of evaluation. The record shall show the name of the candidate, address, phone number, date and place evaluated, and names of evaluation team members. Records shall indicate applicant denial or the level of certification awarded. Records will be used by the office [ commission ] to compile a directory of certified interpreters. The directory will be made available to individuals and groups requesting such information.

§109.229.Contracted Evaluators.

(a) Contracted evaluators will be composed of interpreters who have been interviewed, selected, trained by the board, and appointed by the office [ commission ]. Qualifications of evaluators. Each evaluator shall be certified at either Level III, Level IV, or Level V of the certification program of the office [ commission ] for at least five years; must be a resident of the State of Texas; and must have knowledge of linguistics, sign language theory, and interpreting. Evaluators who are responsible for evaluating the Oral, Morphemic Sign System (MSS), or Signing Exact English II (SEE II) interpreter candidates, are not required to be certified at Level III, Level IV or Level V interpreter because only one level of certification is offered by the office [ commission ]. Responsibilities: Evaluate and score the interpreting and transliterating skills of interpreter candidates; occasionally administer the written examinations to candidates; attend mandatory evaluator training annually.

(b) Evaluators shall be compensated at an established rate of pay for services rendered. The rate of pay is established based on an annual review and approval from the office [ Commission ].

§109.231.Contracted Evaluators Fee Schedule for Services Rendered.

(a) The office [ commission ] shall compensate contracted evaluators for services rendered.

Figure: 40 TAC §109.231(a) (No change.)

(b) Travel Expenses The office [ commission ] shall reimburse contracted evaluators, in accordance with state travel regulations, for travel expenses incurred for any travel outside of their area of residence requested by the office [ commission ] and which is necessary for carrying out their duties as evaluators

§109.233.Impartiality.

(a) Any evaluator who is unable to be impartial in the determination of an applicant's evaluation shall declare this conflict of interest to the evaluation team members or the office [ commission ] staff and shall not participate in any board proceedings or evaluations involving that applicant. A record must be made of this abstention.

(b) An evaluator shall not evaluate any applicant to whom he or she has provided instruction in interpretation or transliteration within the preceding six months and must declare this conflict of interest to the evaluation team members or the office [ commission ] staff. A record must be made of this abstention.

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

Filed with the Office of the Secretary of State on August 15, 2005.

TRD-200503398

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: September 25, 2005

For further information, please call: (512) 424-4050


2. BOARD CERTIFICATION EVALUATION

40 TAC §§109.301, 109.317, 109.323, 109.327, 109.329, 109.339, 109.341, 109.343, 109.347, 109.349, 109.357, 109.359, 109.363, 109.369, 109.371, 109.373, 109.375

These amendments are proposed under the Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.

No other statute, article, or code is affected by this proposal.

§109.301.General.

(a) Unless otherwise indicated, an applicant must submit all required information and documentation on official forms as prescribed by the board.

(b) An applicant must have a high school diploma or GED.

(c) An applicant must be at least 18 years old at the time an application is submitted.

(d) The office [ commission ] staff will not consider a completed application for certification, reciprocity, or renewal officially submitted until the applicant pays the appropriate fee.

(e) Incomplete applications not rectified within 30 days after notice from the office [ commission ] may be voided. The office [ commission ] staff must receive all required application materials at least 30 days prior to the date the applicant wishes to take the examination. The applicant will be notified at least 10 days prior to the date of the next scheduled examination that the application and appropriate fee was received.

(f) Incomplete applications not rectified within 30 days after notice from the office [ commission ] staff may be denied and the applicant so informed. The fees will not be returned.

(g) Applicants will be offered an evaluation within 12 months of the application date.

(h) Subject to recommendation by the board and approval of the office [ commission ], the applicant may receive a certificate at a specific level, depending upon written test scores and skills performance; may receive renewal certification at the same level of current certificate depending on review of the recertification application and documents; or may receive reciprocal certification based on certification from another approved certification system.

§109.317.Passing Scores.

The following table shows passing scores for the office [ commission ] examinations.

Figure 1: 40 TAC §109.317 (No change.)

Figure 2: 40 TAC §109.317 (No change.)

Figure 3: 40 TAC §109.317 (No change.)

Figure 4: 40 TAC §109.317 (No change.)

§109.323.Certification Process.

The office [ commission ] has established a certification process and the requirements for five types of certification: sign language; intermediary; oral; MSS and SEE II. Upon receipt of application and payment of fees, the office [ commission ] staff shall schedule the applicant for an examination. The board shall recommend that the office [ commission ] certify the applicant upon achieving passing scores from examination. The office [ commission ] may waive the written test requirement for an applicant who can verify having successfully passed the National Registry of Interpreters for the Deaf written examination and is currently eligible for the RID performance examination; such documentation must be submitted with the application and fees.

(1) For Level I, the basic written test will be administered to verify knowledge and understanding of the standards of ethical behavior. The Level I performance evaluation will be administered to test proficiency in Spoken English-to-Sign, Spoken English-to-Signed English and Sign-to-Spoken English.

(2) For Levels II and III, the comprehensive written test will be administered to verify knowledge and understanding of the standards of ethical behavior. The Level III performance evaluation will be administered to test proficiency in Spoken English-to-ASL, Spoken English-to-Signed English, Signed English-to-Spoken English and ASL-to-Spoken English.

(3) For Levels IV and V, the comprehensive written test will be administered to verify knowledge and understanding of the standards of ethical behavior. The Level V performance evaluation will be administered to test proficiency in Spoken English-to-ASL, Spoken English-to-Signed English, and ASL-to-Spoken English.

(4) For the Level III Intermediary, the comprehensive written test will be administered to verify knowledge and understanding of the standards of ethical behavior. The Level III Intermediary performance evaluation will be administered to test proficiency in Signed English-to-ASL and ASL-to-Signed English.

(5) For Levels IV and V Intermediary, the comprehensive written test will be administered to verify knowledge and understanding of the standards of ethical behavior. The Level V Intermediary performance evaluation will be administered to test proficiency in Signed English-to-ASL and ASL-to-Signed English.

(6) For the Oral Certificate:Basic (OC:B), the basic written test will be administered to verify knowledge and understanding of the standards of ethical behavior. The OC:B performance evaluation will be administered to test proficiency in spoken-to-visible and visible-to-spoken skills.

(7) For the Oral Certificate:Comprehensive (OC:C), the comprehensive written test will be administered to verify knowledge and understanding of the standards of ethical behavior. The OC:C performance evaluation will be administered to test proficiency in spoken-to-visible and visible-to-spoken skills.

(8) For the Oral Certificate:Visible (OC:V), the comprehensive written test will be administered to verify knowledge and understanding of the standards of ethical behavior. The OC:V performance evaluation will be administered to test proficiency in visible-to-spoken skills.

(9) For the Morphemic Sign System certificate (MSS), the basic written test will be administered to verify knowledge and understanding of the standards of ethical behavior. The MSS performance evaluation will be administered to test proficiency in expressive and receptive transliterating using morphemic signs.

(10) For the Signing Exact English certificate (SEE II), the basic written test will be administered to verify knowledge and understanding of the standards of ethical behavior. The SEE II performance evaluation will be administered to test proficiency in expressive and receptive transliterating using SEE II signs.

§109.327.Reciprocity.

Upon recommendations by the board, the office [ commission ] may grant a certificate without evaluation to a natural person who holds valid certification or licensure issued by a state or territory. The minimum requirements for certification or licensure equivalency must meet or exceed the certificate requirements of the office [ commission ] which are in effect at the time of application.

(1) The board shall consider only states and territories of the United States and areas covered under the North American Free Trade Agreement as acceptable for the purposes of reciprocal certification.

(2) In the case of certification by reciprocity, the board shall waive only the examination requirements for certification.

(3) An applicant applying for certification by reciprocity must submit to the office [ commission ] a copy of the license or certificate by which the reciprocal certification is requested and the name and address of the licensing or certifying agency. A copy of the statute and rules of the agency issuing the license or certificate to the applicant may be requested.

§109.329.Certificate Comparisons.

Below are certificate comparisons as recognized by the office [ commission ]. The skill level comparisons are equivalencies to the Registry of Interpreters for the Deaf (RID). Other certifying organizations or agencies must be approved by the board on an individual basis.

Figure: 40 TAC §109.329

§109.339.Certificate Information.

Upon recommendation of the board, the office [ commission ] shall award certificates to interpreters based on evaluation results, application for reciprocity, or for satisfying renewal requirements. The certificate shall state the effective date and level of certification awarded and the date of expiration. Certificates shall be signed by the board chairperson, the [ executive ] director of the Office for Deaf and Hard of Hearing Services, [ commission, and the chairperson of the commission ].

§109.341.Examples of Interpreting Situations Recommended for Each Skill Level.

Examples of interpreting situations appropriate for each skill level may be obtained by contacting the Office for Deaf and Hard of Hearing Services [ TCDHH ] at P.O. Box 12904, Austin, Texas 78711, or by telephoning (512) 407-3250 voice or (512) 407-3251 TTY.

§109.343.Maintenance Requirements.

The interpreter certificates awarded by the office [ commission ] are valid for a five-year period and shall be renewed annually by October 1.

(1) After the October 1 deadline, a 30-day grace period will be allowed for a certificate holder to satisfy the maintenance requirements and submit proper fees.

(2) After the 30-day grace period, a certificate holder shall pay a late fee as prescribed herein by rule.

(3) Ninety days after the annual maintenance date the office [ commission ] may revoke the certificate of any interpreter who has not paid the annual maintenance fee and late fee.

(4) The certificate holder shall be notified of the office's [ commission ] intent to revoke the certificate and shall give the certificate holder an opportunity to show compliance with certification, recertification, or renewal requirements. The notice must be sent to the certificate holder at least 30 days prior to revocation action.

(A) The office [ commission ] may revoke a certificate by a majority vote at a regular open meeting.

(B) Upon the revocation of a certificate notification shall be sent to the certificate holder by certified mail; notification of revocation shall also be sent to interpreter service providers.

(C) A certificate holder whose certificate has been revoked may file a written appeal of the revocation decision with the office [ commission ] within 45 days of the date of the office's [ commission's ] decision. The appellant may request a hearing before the office [ commission ].

(D) The office [ commission ] will consider the appeal and may offer a hearing in accordance with established office [ commission ] procedures.

(E) Upon certification revocation, a certificate holder must submit a new application, pay the required fee, and meet established requirements to be certified again.

§109.347.Certificate Reinstatement.

(a) The office [ commission ] may reinstate an expired certificate if, not later than the 90th day after date of expiration, the applicant pays the renewal and penalty fee established by the office [ commission ]. Reinstatement shall date from the original date of expiration. The reinstatement application shall be submitted to the board for review and recommendation prior to office [ commission ] approval.

(b) The office [ commission ] may reinstate a certificate that has been expired for more than 90 days if the board finds that the applicant has retained the interpreting skills required for original certification and had good cause for not paying fees in a timely manner. All delinquent fees and penalty fees must be paid for reinstatement to be granted. The renewal date will remain the same.

§109.349.Changes of Name or Address of Certificate Holders.

(a) A certificate holder shall notify the board of changes in name or residential address within 90 days of such changes.

(b) Notification of address changes must be mailed to the [ commission ] office and shall include a complete mailing address, including zip code.

(c) Notification of name changes must be mailed to the [ commission ] office and shall include a copy of a marriage certificate or court decree evidencing such change.

(d) A payment of appropriate fees must be received by the [ commission ] office prior to a replacement certificate being issued with the requested change. The renewal date will remain the same.

§109.357.Recertification Process.

The office [ commission ] has established the following requirements for recertification. Either direct evaluation of interpreting/transliterating skills or verification of training attendance may be used for recertification.

(1) Evaluation of interpreting/transliterating skills. A certificate holder may apply for recertification by taking the same level evaluation or the next level of evaluation. A certificate holder must successfully pass the evaluation before another 5-year certification period is awarded.

(2) Verification of training attended or given. In lieu of evaluation, a certificate holder shall submit documentation of training attendance or presentations given within the last certification period to indicate the following:

(A) Completion of 5.0 CEU's or equivalent in approved training related to professional ethics, the field of interpreting, standards of interpreting practice, or other pre-approved topics.

(B) Completion of 7.5 CEU's or equivalent in approved training related to professional ethics, the field of interpreting, standards of interpreting practice, or other pre-approved topics beginning January 1, 2001.

(C) Completion of 10.0 CEU's or equivalent in approved training related to professional ethics, the field of interpreting, standards of interpreting practice, or other pre-approved topics beginning January 1, 2003.

(D) Certified Court interpreters must obtain two (2) continuing education units (CEUs) for training that is approved for certified court interpreters. The CEU's earned for court interpreter training may count toward the CEU requirements for regular certification maintenance.

(E) Training offered for CEU's for the certified court interpreter specialty must be approved by the agency. Court interpreter training must be determined to be related to legal and court interpreting or to provide information about legal or court issues.

§109.359.Continuing Education and Other Experiences Earned.

Continuing education and other experiences must be incurred during the period that certification is valid. Evidence of the acquisition of these and all other hours shall be submitted to the office [ commission ] staff with the recertification application and fee.

§109.363.Continuing Education Requirements.

These requirements are intended to maintain and improve the overall skills of the certificate holder to keep the interpreter knowledgeable of current research, techniques, and practices.

(1) Continuing education includes courses, workshops, seminars, lectures, classes, and staff development activities oriented toward the enhancement of interpreting practice, values, skills, and knowledge. Preparation and delivery time for workshops, seminars, etc. or preparation time for articles for publication may also be credited toward meeting renewal requirements. This definition does not preclude cross-professional and/or cross-disciplinary training if it is clearly related to the enhancement of interpreting practice, values, skills, and knowledge. Continuing education units (CEU's) granted by accredited colleges, universities, and other agencies will be accepted as long as the descriptions of the sessions and training are within the disciplinary training as prescribed and/or approved by the office [ commission ].

(2) A certificate holder must complete a prescribed number of hours of continuing education as stated in the recertification requirements of this title. One continuing education unit (1.0 CEU) is counted as 10 hours of participation in an approved continuing education experience; 1.5 CEU's is counted as one credit hour of an approved college course.

(3) Instructors, lecturers, presenters, and conductors who are certificate holders will receive two times the number of CEU credit for topics approved by the board for their preparation and delivery time.

(4) The office [ commission ] may grant exemptions for the continuing education requirements:

(A) a certificate holder may submit an affidavit certifying intent not to engage in the practice of interpreting and request and exemption;

(B) a certificate holder who is a nonresident of Texas and is not engaged in the practice of interpreting within Texas may submit an affidavit certifying to this effect and request an exemption;

(C) a certificate holder may submit documented medical reasons which preclude the interpreter from obtaining continuing education units and request an exemption; or

(D) a certificate holder who is on extended active military duty and is unable to practice interpreting during the reporting period must submit a copy of orders to active military duty and request an exemption.

§109.369.Inactive Status of Certificate Holders.

A certificate holder who is not currently employed as an interpreter, is not engaged in the practice of interpreting in the State of Texas, or is living outside the State of Texas may request to be placed in inactive status rather than to recertify. The certificate holder must submit application forms and payment of the appropriate fee to request placement in inactive status. Inactive status is granted for a 12-month period and maybe extended each year if the certificate holder continues to remain eligible. The office [ commission ] does not require continuing education credits during the period of inactive status.

§109.371.Emeritus Certification.

Emeritus certification may be granted to retired persons at least 60 years of age who have been certificate holders with the office [ commission ] for a period of five years or more; or to anyone who becomes disabled at any age. The level of certification awarded depends on the certification last held.

(1) Applicants for emeritus certification who currently hold active and valid certification are not charged additional fees. Applicants for emeritus certification who do not hold current certification shall pay a one-time fee for certification.

(2) An emeritus certification is valid during the lifetime of the certificate holder provided the holder neither returns to full or part-time paid employment nor engages in the practice of interpreting in Texas. No renewal fee is charged for emeritus certification.

(3) There are no continuing education requirements to maintain an emeritus certificate.

(4) Holders of interpreter certification emeritus may use the title "certified interpreter emeritus" and corresponding level of interpreter certification granted by the office [ commission ].

§109.373. Office [ Commission ] and Board Action and Notice Thereof.

Applicants shall be notified in writing if the application is incomplete, in noncompliance for recertification, or rejected.

§109.375.Petition for Reconsideration.

Upon receipt of notice applicants have 20 days to petition the board for reconsideration of an application that has been rejected or denied. The petition must state adequate reasons for reconsideration and a copy must be submitted to the office [ commission ].

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

Filed with the Office of the Secretary of State on August 15, 2005.

TRD-200503399

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: September 25, 2005

For further information, please call: (512) 424-4050


3. STANDARDS OF ETHICAL BEHAVIOR FOR INTERPRETERS

40 TAC §109.501, §109.505

These amendments are proposed under the Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.

No other statute, article, or code is affected by this proposal.

§109.501.Code Source.

The code of ethics of the Registry of Interpreters for the Deaf shall be used as the basis for the Office for Deaf and Hard of Hearing Services [ Texas Commission for the Deaf and Hard of Hearing ] standards of ethical behavior pertaining to interpreter services for deaf and hard of hearing persons .

§109.505.Code of Ethics.

The following provisions shall govern the behavior of interpreters/transliterators certified by the office [ commission ].

(1) Interpreter/Transliterator shall keep all assignment-related information strictly confidential.

(2) Interpreter/Transliterator shall render the message faithfully, always conveying the content and spirit of the speaker, using language most readily understood by the person(s) whom they serve.

(3) Interpreter/Transliterator shall not counsel, advise, or interject personal opinions.

(4) Interpreter/Transliterator shall accept assignments using discretion with regard to skills, setting and the consumer involved.

(5) Interpreter/Transliterator shall request compensation for services in a professional and judicious manner.

(6) Interpreter/Transliterator shall function in a manner appropriate to the situation.

(7) Interpreter/Transliterator shall strive to further knowledge and skills through participation in workshops, professional meetings, interaction with professional colleagues, and reading of current literature in the field.

(8) Interpreter/Transliterator shall strive to maintain high professional standards in compliance with the standards of ethical behavior.

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

Filed with the Office of the Secretary of State on August 15, 2005.

TRD-200503400

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: September 25, 2005

For further information, please call: (512) 424-4050


4. DENIAL, SUSPENSION, OR REVOCATION OF A CERTIFICATE

40 TAC §§109.701, 109.705, 109.707, 109.711

These amendments are proposed under the Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.

No other statute, article, or code is affected by this proposal.

§109.701.Grounds of Denial, Suspension, or Revocation of an Interpreter Certificate or Interpreter Certification Application.

The office [ commission ] may deny application; suspend or revoke certification; or otherwise discipline, reprimand, or place on probation a certificate holder for any of the following causes:

(1) conviction of a felony or any offense involving moral turpitude. In determining if the criminal conviction has a direct bearing on whether the interpreter or applicant should be entrusted to serve the public, the office [ commission ] considers the particular facts and circumstances of each case to include evidence of those matters required by Texas Revised Civil Statutes, Articles 6252-13c and 13d. The crimes having such a direct bearing include criminal conduct of homicide, rape, sexual abuse, indecency with a child, injury to a child, aggravated assault, robbery, burglary, theft, forgery, bribery, perjury, and those relating to controlled substances;

(2) use or under the influence of drugs or intoxicating liquors to an extent that affects his or her professional competence. This includes: the use or under the influence of drugs or intoxicating liquors during an interpreting assignment, whether or not controlled, to an extent that is dangerous to the interpreter or applicant, or any other members of the public; the use or under the influence of drugs or intoxicating liquors during an interpreting assignment, to the extent that such use impairs the interpreter's or applicant's ability to perform the work of interpreting in a competent and responsible manner;

(3) impersonating another person who holds an interpreter certification from the office [ commission ];

(4) allowing another person to use their interpreter certification;

(5) representing oneself or another interpreter has a level of certification different from the actual level of certification awarded by the office [ commission ], in excess of the actual level of certification;

(6) using fraud, deception or misrepresentation in an application for certification;

(7) willfully violating or aiding in the violation of any of the standards of ethical behavior;

(8) being grossly incompetent or grossly negligent in performing the duties as an interpreter; or having demonstrated repeated and/or continuous negligence or irresponsibility in the performance of their duties;

(9) being adjudicated mentally incompetent by a court of competent jurisdiction;

(10) intentionally harassing, abusing, or intimidating, either physically or verbally a [ commissioner, ] board member, evaluator, or any staff of the office [ commission ];

(11) intentionally divulging any aspect of confidential information relating to the certification evaluation including content, topic, vocabulary, identity of individuals involved in the tests, skills, written test questions, and any other testing materials deemed confidential;

(12) failure to meet requirements for certification maintenance;

(13) engaging in the practice of interpreting while certification is suspended; or

(14) falsification of re-certification documents by altering original letters, certificates issued through continuing education, or attendance verification.

§109.705.Certificate Holders' Rights to Information Regarding Revocation and Suspension.

(a) A certificate holder is entitled to a hearing before the office [ commission ] suspends or revokes certification. The certificate holder is entitled to be:

(1) informed of the reason for the proposed action;

(2) informed of the proposed time and place of the hearing on the violation;

(3) informed of his or her right to request probation in lieu of suspension or revocation;

(4) provided a copy of the hearing procedures consistent with the Administrative Procedure Act (Texas Government Code 2001.001, et seq.)

(b) If a hearing is not requested, the matter will be scheduled as an agenda item at the next regular meeting of the office [ commission ].

(c) If a hearing is requested, the certificate holder or applicant will have an opportunity to present evidence and testimony to an administrative law judge of the State Office of Administrative Hearings in a hearing held in accordance with the rules of that office. The rules of the State Office of Administrative Hearings, 1 TAC §155.1, et seq. are hereby adopted by reference as the hearing rules for the office [ Commission ].

(d) Following the hearing, if held, the office [ commission ] shall consider the recommendation of the Administrative Law Judge and shall make a determination of the penalty to be imposed, if any.

(e) The certificate holder or applicant or the office [ commission ] staff may request an informal conference to discuss the matter prior to the hearing.

§109.707.Probation.

(a) Certificate holders whose certification is suspended or revoked for any reason other than not satisfying maintenance requirements may request probation. The certificate holder shall request probation in writing to the office [ commission ] within 30 days of receipt of the notice of revocation or suspension. The following information shall be included in the request:

(1) a record of good conduct;

(2) a list of character witnesses;

(3) written statements supporting probation rather than suspension or revocation;

(4) information to substantiate the certificate holder's intent to comply with all requirements if probation is granted.

(b) A request for probation does not negate a certificate holder's right to appeal. The time limit for requesting an appeal, if appropriate, begins the date the certificate holder is notified of the decision on his or her request for probation.

(c) The certificate holder is entitled to be notified by certified mail of the office's [ commission's ] decision on the probation request. All probation agreements shall include the terms and time period of the probation. Any violation of the terms of the agreement is grounds for suspension or revocation of the probationary certificate.

(d) If the certificate holder accepts the terms of the probation agreement, the certificate holder must sign the probation agreement and send it to the office [ commission ] at least 30 days before the office [ commission ] suspends or revokes the certification according to the office's [ commission's ] original decision.

(e) Certificate holders on probation are entitled to written notification before their probation is rescinded to give an opportunity to show why such action should not be taken.

(f) A certificate holder may be placed on probation only once during the five-year certificate period.

(g) A certificate holder's period of probation may be extended but not beyond the expiration date of the certificate.

§109.711.Certification of Felons.

(a) Refer to the Texas Civil Statutes, Article 6252-13c.

(b) Persons convicted of a felony may request office [ commission ] approval to for certification by providing a letter verifying the actual conviction(s), dates, probation, evidence of successful rehabilitation, and any other evidence the person wishes the office [ commission ] to consider.

(c) If the criminal conviction is directly related to the profession of an interpreter, the office [ commission ] shall consider:

(1) the nature and seriousness of the crime;

(2) the relationship of the crime to the purposes for requesting to become a certified interpreter;

(3) the extent which being a certified interpreter might afford an opportunity to repeat the criminal activity in which the individual had been involved; and

(4) the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of a certified interpreter.

(5) the age of the person at the time of the of crime;

(6) the amount of time that has elapsed since the person's last criminal activity;

(7) the conduct and work activity of the person prior to and following the criminal activity;

(8) evidence of the person's rehabilitation or rehabilitative effort while incarcerated or following release;

(9) other evidence of the person's present fitness, including letters of recommendation from prosecution, law enforcement, and correctional officers who prosecuted, arrested, or had custodial responsibility for the person; the sheriff and chief of police in the community where the person resides; and any other person in contact with the convicted person.

(d) It shall be the responsibility of the applicant to the extent possible to secure and provide to the office [ commission ] recommendations from the prosecution, law enforcement, and correctional authorities; the applicant shall also furnish proof in such form as may be required by the office [ commission ] that he/she has maintained a record of good conduct and has paid all outstanding court costs, supervision fees, fines, and restitution as may have been ordered in all criminal cases in which the applicant has been convicted.

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

Filed with the Office of the Secretary of State on August 15, 2005.

TRD-200503401

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: September 25, 2005

For further information, please call: (512) 424-4050


5. FEES

40 TAC §§109.771, 109.773, 109.777

These amendments are proposed under the Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.

No other statute, article, or code is affected by this proposal.

§109.771.Collection and Application of Fees.

All fees collected will be applied to the certification program. All fees are established by the office [ commission ] upon recommendation of the board.

§109.773.Fees.

The office [ commission ] shall charge the following fees:

Figure: 40 TAC §109.773 (No change.)

§109.777.Returned Checks.

(a) A fee of $25 will be charged for each returned check.

(b) Evaluation results will be withheld until each returned check is appropriately paid along with the returned check fee.

(c) A returned check may result in the revocation of a certificate if the returned check is not appropriately paid within 10 days of notification from the office [ commission ].

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

Filed with the Office of the Secretary of State on August 15, 2005.

TRD-200503402

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: September 25, 2005

For further information, please call: (512) 424-4050


6. PUBLICATIONS

40 TAC §§109.801, 109.803, 109.805

These amendments are proposed under the Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.

No other statute, article, or code is affected by this proposal.

§109.801.Registry.

(a) The office [ commission ] shall provide a continuously updated directory of all certified interpreters.

(b) The directory shall include, names, addresses, telephone numbers, and levels of all current certifications for all certificate holders.

(c) Copies of the directory will be available to certificate holders, service agencies, judicial bodies, and the general public on request. A fee may be charged for printing and mailing the directory.

§109.803.Program Information.

(a) The office [ commission ] staff and board may prepare information of public interest which describes regulatory functions of the board and office [ commission ] and procedures to handle complaints.

(b) The office [ commission ] may make program information available to the general public and appropriate service provider agencies.

§109.805.Other Publications.

The office [ commission ] staff and board may prepare other publications pertinent to the functions of certified interpreters for distribution to certificate holders and other appropriate recipients.

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

Filed with the Office of the Secretary of State on August 15, 2005.

TRD-200503403

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: September 25, 2005

For further information, please call: (512) 424-4050


7. CERTIFIED COURT INTERPRETERS

40 TAC §§109.903, 109.905, 109.909, 109.911, 109.913, 109.915, 109.917, 109.919, 109.921, 109.923, 109.925, 109.927, 109.929, 109.931

These amendments are proposed under the Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.

No other statute, article, or code is affected by this proposal.

§109.903.Grandfathering of Current Court Interpreters.

Interpreters certified prior to September 1, 2001 at TCDHH level III, III-I, IV, IV-I, V, V-I or their equivalent, as determined by the office [ Commission ] may, before January 1, 2002, submit an application and required fees to be a certified court interpreter and must provide the [ Executive ] Director with documentation verifying either a minimum of 20 hours of experience interpreting in a courtroom setting; or 10 hours experience interpreting in a courtroom setting and at least 10 hours of legal skills interpreter training.

§109.905.List of CART Providers.

A list of individuals who are specialists in real-time captioning and certified by the Court Reporters Certification Board will be maintained by the office [ Commission ].

§109.909.Court Interpreter Services Fees for the Deaf and Hard of Hearing.

(a) Under the authority of the Texas Code of Criminal Procedure Art. 38.31, Texas Government Code §57.022, and the Texas Human Resources Code §81.006(a), the office [ Commission ] establishes maximum allowable fees for the payment of interpreter services for persons who are deaf or hard of hearing which must be provided in proceedings of state agencies; state, county, and municipal civil and criminal courts; and political subdivisions.

(b) The fees for court interpreter services for the deaf and hard of hearing are established as the best value through a request for proposal process performed on at least a biennial basis. These fees may be reviewed and/or revised as deemed necessary by the office [ Commission ]. The schedule of fees and any changes will be posted on the office [ Commission ] website and are available upon request.

(c) A court's funding jurisdiction is required to pay for the interpreter services utilized for all court proceedings.

(d) The parties to either a civil or criminal proceeding may not be assessed the costs of court interpreter services. The cost of interpreter services shall not be charged to the individual or individuals requesting or requiring the court interpreter services.

§109.911.Licensing Requirements--Examinations.

Except as otherwise provided by this chapter, an applicant to become a Court Interpreter must be a Level III or higher certified interpreter equivalent, or an interpreter certified through RID as a CSC, CI/CT, RSC, CDI, or MCSC, and pass an examination on legal and court procedure skills and knowledge, as follows:

(1) A passing grade on the examination is 80% [ 75% ].

(2) The examinations will be administered to applicants with content and format determined by the office [ commission ].

(3) Subject to the following provisions, an applicant may request an accommodation in accordance with the Americans with Disabilities Act.

(A) The request must be in writing on a form approved by the office [ commission ].

(B) Proof of disability and the limiting factors of the disability may be required.

(4) An applicant who does not attend a scheduled examination will forfeit the examination fee. An applicant may attend a future examination without payment of additional fee upon proof of the following:

(A) Illness of the person of an immediate family member who the person is required to attend; or

(B) Documented evidence that the applicant was unable to attend the examination due to reasons beyond their control.

(5) Certification is effective for a period of 5 years from the date of certification.

(6) Cheating on an examination is grounds for denial, suspension, or revocation of a certification and/or an administrative penalty.

(7) Upon successful completion of all requirements for certification and approval by the office [ commission ], the applicant shall be issued a card evidencing certification as a court interpreter.

(8) The office [ commission ] may enter into a memorandum of understanding with the Texas Department of Licensing and Regulation to use their test of legal and court procedure knowledge and skills.

§109.913.Training and Qualifications to Take Examination.

Prior to taking the court interpreter examination, an applicant must provide to the office [ commission ] proof that the applicant has completed instruction in court interpretation in one of the following methods:

(1) Completion of an approved course of instruction in courtroom interpretation skills with not less than 120 hours of classroom instruction;

(2) Mentoring for not less than 120 hours of actual practice by a certified court interpreter who has been approved to act as a mentor; or

(3) A combination of instruction and mentoring totaling 120 hours.

§109.915.Approval of Courses of Instruction and Mentors.

(a) A person intending to teach court interpretation must submit to the office [ commission ] a written course outline and materials to be used in the course of instruction to the office [ commission ].

(b) The office [ Commission ] will review the proposed course outline and materials and make a determination on whether it should be approved.

(c) Instructors must hold either TCDHH Court Interpreter certification or be a licensed attorney or paralegal.

(d) A person intending to be a mentor shall apply to the office [ commission ] on a form to be provided by the office [ commission ].

(e) To be a mentor for court interpreting, the person shall have the following qualifications:

(1) Meet the requirements for and hold TCDHH Court Interpreter Certification or RID CSC, CI/CT, RSC, CDI, or MCSC for a period of not less than one year;

(2) Pass the examination on legal and court procedure skills; and

(3) Not have been subject to disciplinary action in the previous two years.

(f) Mentors shall conform to a course of training prescribed by the office [ commission ].

§109.917.Licensing Requirements; Renewal.

(a) A complete application for certification renewal and all required fees must be filed by the expiration date, or the application will be considered late and the certification will expire.

(b) Non-receipt of a certification renewal notice from the office [ Commission ] does not exempt a person from any requirements of this chapter.

(c) A person with an expired certification shall not perform work requiring a certification under Chapter 57 of the Texas Government Code.

(d) A certification that has expired for a period of less than one year may be reissued upon meeting the conditions of a certification renewal, as outlined in this section, and payment of required fees, including the renewal fee and the late renewal fee.

§109.919.Responsibilities of Certified Court Interpreter--General.

(a) A certified court interpreter must provide the following written notification to the court: "Certified by the Department of Assistive and Rehabilitative Services, Office for Deaf and Hard of Hearing Services [ Texas Commission for the Deaf and Hard of Hearing ]. Complaints about the services provided by this person may be presented to the Office [ Commission ] at P.O. Box 12904, Austin, Texas 78711." The notification shall also be included on all contracts and invoices for court interpreter services.

(b) A certified court interpreter shall present their court interpreter certification card upon the request of a court or an officer of the court.

(c) A certified court interpreter shall notify the Office [ Commission ], in writing, within thirty (30) days of any change in the certified court interpreter's name, address, or telephone number.

(d) A Level III, IV or V certified interpreter, or RID certified CSC, IC/IT, RSC. MCSC interpreter who is not a certified court reporter who interprets in court shall inform the court.

§109.921.Fees for Court Interpreters.

(a) All fees are non-refundable.

(b) The original certification application filing fee, including the examination fee, shall be $175.

(c) The renewal application filing fee shall be $100.

(d) The fee for obtaining a duplicate certification or making a change in name or address, shall be $20 each.

(e) The fee for approval of a course of instruction for court interpreters shall be $100 or the fee may be waived at the discretion of the Office [ Commission ].

(f) The fee for approval of a person as a mentor for court interpreters shall be $50.

§109.923.Sanctions--Administrative Sanctions/Penalties.

If a person violates any provision of Title 2, Texas Government Code, chap. 57, the provisions of Texas Human Resources Code, chap. 81 (relating to the Texas Commission for the Deaf and Hard of Hearing), any provision of Title 40, Texas Administrative Code, Subchapter B of Chapter 109 [ Chapter 183 ], or any provision of an order of the [ Executive ] Director or Office [ Commission ], proceedings may be instituted to impose administrative penalties, administrative sanctions, or both administrative penalties and sanctions in accordance with Texas Human Resources Code, chap. 81 or Texas Government Code, chap. 57.

§109.925.Actions Against Persons not Certified as Court Interpreters.

The office [ commission ] shall investigate complaints and take action against a person alleged to perform court interpretation without certification or authorization as provided by this subchapter [ chapter ]. The following investigative process and resulting action listed in paragraphs (1) - (3) of this section will be followed by the office [ commission ] to ensure affected individuals are afforded due process of law.

(1) Upon receipt of a formal or staff initiated complaint, the information will be evaluated to determine if the evidence provides sufficient probable cause that a violation may have occurred.

(2) If sufficient probable cause does not exist, an investigation will not be initiated.

(3) If sufficient probable cause is found, then an investigation will be initiated by the office [ commission ] staff to determine if a violation of law has occurred. The office's [ commission's ] investigative process will be as follows.

(A) The individual or firm will be advised of the complaint and the specific section of the Act which appears to be violated. If the initial evidence is sufficiently strong, the [ executive ] director may offer the respondent a consent order that, if accepted, will be presented to the office [ commission ] for acceptance or rejection. The consent order shall include an administrative penalty not inconsistent with §109.923 [ §183.712 ] of this title (relating to Sanctions) and a compliance requirement. The respondent shall be fully informed of the range of penalties allowed under criminal, civil and administrative proceedings.

(B) The respondent will be afforded the opportunity to respond to the complaint to show that the actions which precipitated the complaint are not in violation of the Act, or to accept the consent order.

(C) If, after evaluation of the respondent's response a violation appears evident, the respondent will be afforded the opportunity to resolve the allegations informally in the same manner prescribed for certification holders in §109.927 [ §183.714 ] of this title (relating to Disciplinary Actions).

(D) Any office [ commission ] action under this paragraph which is not informally disposed by agreement or consent order, will be considered a contested case and will be handled in accordance with applicable law and office [ commission ] rules.

§109.927.Disciplinary Actions.

(a) The office [ commission ] shall take disciplinary action against a certificate holder who is found to be in violation of a law or rule of the office [ commission ]. A disciplinary action may be composed of any one or combination of the following listed in paragraphs (1) - (6) of this subsection:

(1) revocation of a certification;

(2) suspension of a certification;

(3) probation of a suspended certification;

(4) refusal to renew a certification;

(5) issuance of a formal or informal reprimand; or

(6) assessment of an administrative penalty under the law.

(b) All disciplinary actions issued by the office [ commission ] will take the form of a office [ commission ] order. All disciplinary actions shall be permanently recorded and made available upon request as public information. Except for an informal reprimand, all disciplinary actions may be released in a press release, and shall be transmitted to the RID.

(c) A court interpreter whose certification has expired for nonpayment of renewal fees continues to be subject to all provisions of the Act and office [ commission ] rules governing certified court interpreters until the certification is revoked by the office [ commission ] or becomes non-renewable under the law.

(d) Upon determination that sufficient probable cause exists to indicate that a violation of law or rules may have occurred, the [ executive ] director shall notify the court interpreter, hereafter referred to in this section as "respondent," by personal service or by certified or registered mail of the alleged violation. The respondent shall be afforded an opportunity to present rebuttals, arguments and evidence to the office [ commission ] prior to the initiation of disciplinary proceedings. If a respondent does not respond, the office [ commission ] may proceed with a contested case hearing and refer the matter to the State Office of Administrative Hearings.

(e) If, after evaluation of the respondent's response a violation appears evident, the [ executive ] director shall initiate disciplinary action. Before proceeding with the formal contested case hearing process, the respondent shall have an opportunity to resolve the allegations informally.

(1) The respondent may request an informal conference to present additional evidence and discuss particulars of the allegation. Upon receipt of such a request the [ executive ] director shall schedule a conference at the commission office or other suitable location, and shall appoint an informal conference committee composed of one office [ commission ] member, the [ executive ] director or his/her designee , and a member of the BEI; the committee may meet and act provided that no more than one committee member is absent. Other persons designated by the respondent or the [ executive ] director or designee may be present as resources or as legal counsel to respondent. The informal conference committee shall hear the particulars of the allegations, and shall recommend:

(A) dismissal by the [ executive ] director;

(B) a proposal for an agreed office [ commission ] order for disciplinary actions that will be presented to the office [ commission ] for acceptance or rejection; or

(C) scheduling of a formal hearing.

(2) The [ executive ] director may also offer the respondent a consent order that will be presented to the office [ commission ] for acceptance or rejection. If the respondent declines such an offer, or if the office [ commission ] rejects it, the procedures in paragraphs (1) or (3) of this subsection will be followed.

(3) Any office [ commission ] action under this subsection which is not informally disposed by agreed or consent order, will be considered a contested case and will be handled in accordance with applicable law and office [ commission ] rules.

(f) Criminal convictions shall be handled as shown in paragraphs (1) - (3) of this subsection:

(1) The office [ commission ] shall follow the requirements of Texas Occupations Code §53.021, and shall revoke the certification of any court interpreter incarcerated as a result of a felony conviction, or violation of felony probation or parole, or revocation of mandatory supervision subsequent to being certified as a certified court interpreter.

(2) The office [ commission ] may take any of the actions set out in subsection (a) of this section when a court interpreter is convicted of a misdemeanor or a felony without incarceration if the crime directly relates to the certification holder's duties and responsibilities as a certified court interpreter.

(3) Any court interpreter whose certification has been revoked under the provisions of this subsection may apply for a new certification upon release from incarceration, but the application shall be subject to additional scrutiny relating to the incarceration. Such scrutiny shall be in accordance with Texas Occupations Code §53.021.

(g) The office [ commission ], the [ executive ] director, an administrative law judge, or the participants in an informal conference may arrive at a greater or lesser sanction than suggested in these rules. Allegations and disciplinary actions will be set forth in the final office [ commission ] order and the severity of the disciplinary action will be based on the factors listed in paragraphs (1) - (9) of this subsection:

(1) the seriousness of the acts or omissions;

(2) the number of prior disciplinary actions taken against the respondent;

(3) the severity of penalty necessary to deter future violations;

(4) efforts or resistance to correct the violations;

(5) any hazard to the health, safety, property or welfare of the public;

(6) any actual damage, physical or otherwise, caused by the violations;

(7) any economic benefit gained through the violations;

(8) the economic harm to individuals caused by the violation; or

(9) any other matters impacting justice and public welfare.

(h) The office [ commission ] may impose appropriate sanctions against certificate holders for violation of the statutes or rules; the minimum administrative penalty will be $100 per violation. The maximum penalty is $5,000 per violation, and each day of violation is a separate violation. The office [ commission ] shall base the amount of the administrative penalty on the following factors:

(1) the seriousness of the violation;

(2) whether the person has previously committed violations;

(3) whether there is a violation of the integrity of the legal process; and

(4) any of the factors listed in subsection (g) of this section that are relevant to the determination of the appropriate penalty.

§109.929.Disciplinary Guidelines.

(a) Purpose. The purpose of these guidelines are to:

(1) provide guidance and a framework of analysis for office [ commission ] staff, the enforcement committee and the administrative law judges to promote consistency in the making of recommendations on sanctions to the office [ commission ] in disciplinary cases;

(2) promote consistency in the exercise of sound discretion by the office [ commission ] in the imposition of sanctions in disciplinary cases; and

(3) provide guidance for the enforcement committee and other members of the office [ commission ] for the informal resolution of potentially contested matters.

(b) Limitations. This section shall be construed and applied so as to preserve the office's [ commission's ] discretion in the imposition of sanctions and remedial measures pursuant to the law. This section shall be further construed and applied so as to be consistent with the law, and shall be limited to the extent as otherwise proscribed by statute and office [ commission ] rule.

(c) Office [ Commission ] action. The office [ commission ] may take disciplinary action against a certified court interpreter who is found in violation of the law or these rules, another state law for which disciplinary action may be taken or a rule or order of the office [ commission ]. A disciplinary action may be composed of any one or a combination of the following sanctions:

(1) revocation of certification;

(2) suspension of certification for a definite period of time;

(3) suspension with probation for a definite period of time;

(4) formal reprimand;

(5) administrative penalty; or

(6) additional continuing education.

(d) Practicing without certification. A person, not a certified court interpreter or otherwise qualified to interpret in court or a legal proceeding, who is found to be practicing without a certificate in violation of the law or these rules, may be assessed an administrative penalty as provided by these rules.

(e) Additional conditions. The Office [ Commission ] may impose, as a condition of probation or as a term of a sanction, additional conditions or restrictions upon the certification that the Office [ Commission ] deems necessary to facilitate the rehabilitation and education of the person and to protect the public, including but not limited to:

(1) completion of a specified number of continuing education hours on specified topics approved in advance by the Office [ commission ] in addition to the minimum number required of all certified court interpreters as a condition of renewal;

(2) taking and passing with the minimum required score of an examination required by the Office [ commission ];

(3) restrictions on the type of proceedings to be interpreted;

(4) restrictions on the certified court interpreter's supervision of others in the practice;

(5) undergoing a psychological and/or medical evaluation by a qualified professional approved in advance by the office [ commission ] and undergoing any treatment recommended pursuant to the evaluation;

(6) regular reporting to the office [ commission ] as a means of monitoring the certified court interpreter's compliance with a office [ commission ] order.

(f) A certified court interpreter whose certification has been suspended shall not during the period of suspension perform any act of court interpretation, except as otherwise permitted by these rules.

(g) Aggravation. The following may be considered as aggravating factors so as to merit more severe or restrictive sanction by the office [ commission ]:

(1) seriousness of the violation, including the nature, circumstances, extent, or gravity of the prohibited conduct and the harm or potential harm to a client;

(2) economic harm to any individual or entity;

(3) hazard or potential hazard created to the health, safety, or welfare of the public;

(4) attempted concealment of misconduct;

(5) premeditated conduct;

(6) intentional misconduct;

(7) disciplinary history, including prior violations of a similar or related nature;

(8) likelihood of future misconduct of a similar nature;

(9) failure to implement remedial measures to correct or alleviate harm arising from the misconduct; or

(10) lack of rehabilitative potential.

(h) All disciplinary actions issued by the office [ commission ] will take the form of a office [ commission ] order. All disciplinary actions shall be recorded and made available upon request as public information.

§109.931.Continuing Education for Court Interpreters.

In addition to the continuing education units required for certified interpreters of each level, a certified court interpreter shall take 2 units of continuing education in subjects approved by the office [ commission ] for court interpreting for each certification renewal cycle.

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

Filed with the Office of the Secretary of State on August 15, 2005.

TRD-200503395

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: September 25, 2005

For further information, please call: (512) 424-4050