Proposed Rules Title 40

TITLE 40. SOCIAL SERVICES AND ASSISTANCE

Part 2. DEPARTMENT OF ASSISTIVE AND REHABILITATIVE SERVICES

Chapter 101. ADMINISTRATIVE RULES AND PROCEDURES

Subchapter E. APPEALS AND HEARING PROCEDURES FOR VOCATIONAL REHABILITATION AND INDEPENDENT LIVING PROGRAMS

The Texas Health and Human Services Commission proposes amendments to the rules of the Department of Assistive and Rehabilitative Services in Title 40, Part 2, Chapter 101, concerning Administrative Rules and Procedures. This proposal adds a new Subchapter E, Appeals and Hearing Procedures for Vocational Rehabilitation and Independent Living Programs, Division 1, General Rules, §101.811 and §101.821; Division 2, Division for Blind Services Appeals and Hearing Procedures, §§101.851, 101.853, 101.855, 101.857, 101.859, 101.861, 101.863, 101.865, 101.867, 101.869, 101.871, 101.873, 101.875, 101.877, 101.879, 101.881, 101.883 and Division 3, Division for Rehabilitation Services Appeals and Hearing Procedures, §§101.901, 101.903, 101.905, 101.907, 101.909 and 101.911.

The new rules are proposed to clarify and update program rules from the former Texas Commission for the Blind and the former Texas Rehabilitation Commission, which were consolidated into the Department of Assistive and Rehabilitative Services (DARS) in 2004, into a single set of rules applicable to appeal and hearings procedures for all vocational rehabilitation and independent living programs administered by the DARS, as provided by House Bill 2292, 78th Legislature, Regular Session. Rules relating to appeals and hearing procedures for these program were previously contained in Chapter 106, Subchapter A, Division 1, of this title, relating to Blind Services, and in Chapter 107, Subchapter C of this title, relating to Rehabilitation Services. The repeal of those rules is contemporaneously proposed elsewhere in this issue of the Texas Register .

Bill Wheeler, Chief Financial Officer, Department of Assistive and Rehabilitative Services, estimates that for each year of the first five years that the 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 rules will be in effect, the public benefit anticipated as a result of adopting the proposed rules 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. 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 rules will not affect a local economy.

Comments on the proposal may be submitted to Barbara Lazard, Assistant General Counsel, Department of Assistive and Rehabilitative Services, 4800 North Lamar Boulevard, Suite 300, Austin, Texas 78756-3178.

1. GENERAL RULES

40 TAC §101.811, §101.821

The new rules 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.

§101.811.Motion for Reconsideration.

(a) Either party to a hearing may file a motion for reconsideration with the Hearings Coordinator, DARS Legal Services, within 20 days after the party is notified of the issuance of the decision of the impartial hearing officer.

(b) The motion for reconsideration must specify the matters in the decision of the impartial hearing officer which the party considers to be erroneous. Any response to the motion for reconsideration must be filed no later than thirty days after a party, or a party's attorney or representative is notified of the issuance of the decision of the impartial hearing officer.

(c) The impartial hearing officer shall rule on the motion for reconsideration no later than 15 days after receipt of the motion, or after receipt of the response to the motion for reconsideration, whichever comes later. If the motion is granted, the Impartial Hearing Officer shall issue a decision upon reconsideration within an additional 15 days. If the impartial hearing officer fails to rule on the motion for reconsideration within 15 days, the motion is denied as a matter of law.

(d) Service. Service of the impartial hearing officer's decision or of a motion or response under this section shall be made by any of the following means to a party, a party's attorney or representative--

(1) Hand-delivery;

(2) Courier-receipted delivery;

(3) Regular first-class mail, certified or registered mail;

(4) Email or facsimile transmission before 5:00 p.m. on a business day to the recipient's current email address or telecopier number; or

(5) Such other means as the Impartial Hearing Officer may direct.

(e) Date of service. The date of service is the date of hand-delivery, of delivery by courier, of mailing, of emailing or of facsimile transmission, unless otherwise required by law. Unless the contrary is shown, a decision, motion or response that is sent by regular first-class mail shall be presumed to have been received within three days of the date of post-marking, if enclosed in a wrapper addressed to the recipient's last known address with return address to the sender; stamped with the appropriate first-class postage; and deposited on the date post-marked with the U.S. Postal Service.

§101.821.Civil Action.

(a) Any party who disagrees with the findings and decision of an impartial hearing officer has a right to bring a civil action in any court of competent jurisdiction without regard to the amount in controversy.

(b) A person must initiate a civil action for review of a decision of an impartial hearing officer by filing a petition not later than the thirtieth day after the date on which the decision that is the subject of complaint is final and appealable.

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 April 30, 2007.

TRD-200701632

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

2. DIVISION FOR BLIND SERVICES APPEALS AND HEARING PROCEDURES

40 TAC §§101.851, 101.853, 101.855, 101.857, 101.859, 101.861, 101.863, 101.865, 101.867, 101.869, 101.871, 101.873, 101.875, 101.877, 101.879, 101.881, 101.883

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

§101.851.Purpose and Scope.

(a) This chapter establishes procedures under which a determination made by the Department concerning the provision of vocational rehabilitation services may be appealed.

(b) The provisions of this chapter apply to appeals that may be initiated by the following:

(1) An applicant for services;

(2) An eligible person.

(c) The provisions of this division shall not be construed so as to enlarge, diminish, modify, or alter the jurisdiction, powers, or authority of the Department or the substantive rights of any person.

§101.853.Legal Authority and Scope.

(a) The following statutes and regulations authorize the procedures established by the chapter:

(1) The Rehabilitation Act of 1973, as amended, 29 U.S.C. §§701 et seq. and regulations of the Department of Education, 34 CFR §361.57 et seq, as amended.

(2) Texas Human Resources Code Chapter 91 (concerning vocational rehabilitation services for the blind and visually-impaired);

(3) Texas Human Resources Code Chapter 111 (concerning vocational rehabilitation services for the disabled);

(4) Texas Administrative Procedure Act, Texas Government Code Chapter 2001, as amended.

(b) Determinations to which the procedures of this chapter apply are those that concern the denial, reduction, suspension or termination by the Division's vocational rehabilitation services program.

(c) A person's decision to seek an informal resolution to matters about which the person is dissatisfied shall not prevent, compromise, or delay the person's access to formal resolution procedures in this division.

(d) The Division shall not institute a suspension, reduction, or termination of services being provided under an individualized plan for employment or independent living plan pending informal resolution or a final determination of the formal hearing under this division unless the individual or, in an appropriate case, the individual's authorized representative, so requests or the agency has evidence that the services have been obtained through misrepresentation, fraud, collusion, or criminal conduct on the part of the individual.

§101.855.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise. The use of the singular or plural case is not meant to be limiting unless the context clearly indicates otherwise.

(1) Act--The Rehabilitation Act of 1973 as amended, 29 United States Code, §701, et seq.

(2) Appellant--An applicant, consumer, or authorized representative who has initiated formal procedures pursuant to this chapter.

(3) Applicant--A person who has applied for services but for whom an eligibility determination has not been made.

(4) Authorized representative--An attorney authorized to practice law in the State of Texas, or a person designated by a party to represent the party in hearing procedures. The term includes a parent or guardian if the appellant is a child or a person adjudicated as a ward by a court of competent jurisdiction.

(5) Consumer--A person who has been determined eligible for and is receiving services from the Department.

(6) Department--the Department of Assistive and Rehabilitative Services (also referred to as "DARS").

(7) Discovery--The process by which a party may, prior to the hearing, obtain evidence which is relevant to the subject matter of the hearing.

(8) Commissioner--the Commissioner of the Department of Assistive and Rehabilitative Services.

(9) Hearing--A formal review conducted under this chapter. This term includes prehearing conferences.

(10) Impartial hearing officer (IHO)--A person who is appointed to conduct a hearing under this chapter.

(11) Party--A person or agency named or admitted to participate in a formal hearing.

(12) Person--Any individual, representative, corporation, or other entity, including any public or nonprofit corporation, or agency or instrumentality of federal, state, or local government.

(13) Record--The official record of a hearing, including all arguments, briefs, pleadings, motions, intermediate rulings, orders, evidence received or considered, statements of matters officially noticed, questions and offers of proof, objections and rulings on objections, proposed findings of fact, conclusions of law, hearing officer decision, any other decision, opinion, or report by the hearing officer or commissioner, and all Department memoranda or data, including consumer and applicant files, submitted to or considered by the impartial hearing officer or commissioner.

§101.857.Filing a Request for Review.

(a) Any applicant or eligible individual, who is dissatisfied with a determination made by the staff of the Department concerning the furnishing or denial of services may request a review of the determination.

(b) The request for a review shall be filed in writing with the Coordinator for Hearings, Legal Services, DARS.

(1) A request shall be considered filed on the day that it is received by the Coordinator for Hearings.

(2) Preprinted forms for this purpose are available upon request either from the Coordinator for Hearings, Legal Services or from any Department office.

(c) Upon receiving a request for review, the Coordinator for Hearings, Legal Services, shall, no later than the next working day, mail the appellant:

(1) the name, address, and phone number of the Client Assistance Program established pursuant to federal law;

(2) the name of the impartial hearing officer appointed to hear the appeal, and the date, time and place of any pre-hearing;

(3) a copy of applicable hearing procedures; and

(4) notice that the appellant has the right to request mediation procedures.

(d) A request for review shall be considered timely if it is received by the Department no later than 180 days from the date the person was mailed notice of the determination to the person's last known address.

§101.859.Assignment of Impartial Hearing Officer.

(a) The Department's authorized representative shall select, on a random basis or by agreement between the Department's representative and the appellant, or if appropriate, the appellant's authorized representative, an impartial hearing officer from a pool of persons qualified according to these rules.

(b) The impartial hearing officer shall be an individual who:

(1) is not an employee of a public agency (other than an administrative law judge, hearing examiner, or employee of an institution of higher education);

(2) has not been involved in previous decisions regarding the vocational rehabilitation of the appellant;

(3) has knowledge of the delivery of vocational rehabilitation services, the state plan, and the federal and state regulations governing the provision of services;

(4) has received training specified by the Department with respect to the performance of official duties; and

(5) has no personal, professional, or financial interest that would be in conflict with the objectivity of the individual.

(c) An individual is not considered to be an employee of a public agency for the purposes of subsection (b) of this section solely because the individual is paid by the agency to serve as a hearing officer.

§101.861.Powers and Duties of the Impartial Hearing Officer.

(a) The impartial hearing officer shall have the authority and duty to:

(1) conduct a full, fair, and impartial hearing;

(2) take action to avoid unnecessary delay in the disposition of the proceeding; and

(3) maintain order.

(b) The impartial hearing officer has the power to regulate the course of the hearing, including the power to:

(1) administer oaths;

(2) take testimony;

(3) rule on questions of evidence;

(4) rule on discovery issues;

(5) issue orders relating to hearing and prehearing matters, including orders granting motions to subpoena witnesses and imposing sanctions regarding discovery;

(6) admit or deny party status;

(7) limit irrelevant, immaterial, and unduly repetitious testimony and reasonably limit the time for presentations;

(8) grant continuance(s);

(9) request parties to submit legal memoranda, proposed findings of fact and conclusions of law; and

(10) issue decisions based on findings of fact and conclusions of law.

(c) Unless required for the disposition of ex parte matters authorized by law, the impartial hearing officer may not directly or indirectly communicate in connection with any issue of fact or law with the commissioner or any party or a party's authorized representative, except on notice and opportunity for each party to participate.

(d) The authority of the impartial hearing officer concerning any discovery under subsection (b) of this section is subject to the authority granted by the Texas Administrative Procedure Act, Texas Government Code Chapter 2001.

§101.863.Reasonable Accommodations.

(a) Any hearing or proceedings conducted under these provisions shall be held, whenever feasible, by telephone, but at a time and place reasonably accessible to the appellant and witnesses, and convenient for parties. In considering the physical location of a hearing or proceeding, the impartial hearing officer shall consider, among other factors, the suitability of any proposed facilities for a hearing, including such accommodations as the ability of the appellant and witnesses to gain physical access to the facilities;

(b) The Department shall, upon reasonable notice, provide the appellant with readers or interpreters during proceedings conducted pursuant to this division. Reasonable notice shall be considered as no fewer than five working days prior to the proceeding unless good cause for a shorter period of time shall exist in the judgment of the impartial hearing officer.

(c) A copy of a transcript prepared during hearing proceedings and all notices and documents shall be provided to the appellant in an accessible format.

§101.865.Failure To Attend Hearing and Default.

If, after receiving a notice of a hearing, a party or the party's authorized representative fails to attend a hearing, the impartial hearing officer may proceed and, where appropriate, may issue a default decision against the absent party.

§101.867.Witness Fees.

(a) Any witness or deponent who is not a party to and who is subpoenaed or otherwise appears at any hearing or proceeding at the instance of the Department is entitled to receive reimbursement as provided in the Texas Government Code §200.103.

(b) The Department is not responsible for expenses incurred by any witness or deponent who is not a party to and who is subpoenaed or otherwise appears at any hearing or proceeding at the instance of the appellant except as such cost may be determined by the impartial hearing officer to be the responsibility of the Commission as a part of the decision in the appeal.

(c) The party calling or deposing an expert witness shall be responsible for all fees and expenses charged by the expert witness.

§101.869.Dismissal Without Hearing.

(a) The impartial hearing officer may entertain motions for dismissal without a hearing for the following reasons:

(1) failure to pursue the hearing;

(2) unnecessary duplication of proceedings or res judicata;

(3) withdrawal of the request for hearing;

(4) moot questions;

(5) lack of jurisdiction;

(6) failure to raise a material issue in the pleading; and

(7) failure of a party or authorized representative to appear at a scheduled hearing.

(b) If the impartial hearing officer finds that such motion should be granted the impartial hearing officer will so order, and the commissioner may enter a final order of dismissal.

§101.871.Discovery.

(a) Parties are entitled to conduct the following forms of discovery:

(1) oral or written depositions of any party or nonparty;

(2) written interrogatories to a party;

(3) requests of a party for admission of facts and the genuineness or identity of documents or things;

(4) requests and motions for production, examination, and copying of documents or other tangible materials; and

(5) requests for physical or mental examinations of persons.

(b) Parties may obtain discovery regarding any matter which is relevant to the subject matter of the hearing or which is reasonably calculated to lead to the discovery of evidence which would be admissible at the hearing.

(d) All disputes with respect to any discovery matter shall be filed with and resolved by the impartial hearing officer.

(e) All parties shall be afforded a reasonable opportunity to file objections and motions to compel with the impartial hearing officer regarding any and all discovery requests.

(f) Copies of discovery requests and documents filed in response thereto shall be filed on all parties, but should not be filed with the impartial hearing officer unless directed to do so by the impartial hearing officer or when in support of objections, motions to compel, motions for protective order, or motions to quash.

(g) To the extent not inconsistent with these rules and applicable statutes, discovery shall be governed by the Texas Rules of Civil Procedure and applicable case law thereunder, provided however, that all such rules shall be liberally construed in furtherance of the ends of justice.

(h) To the extent not inconsistent with these rules and applicable statutes, formal rules of evidence shall not apply and any evidence of any character may be admitted and considered by the impartial hearing officer if the impartial hearing officer deems such evidence relevant to the resolution of the issues presented for consideration.

(i) Any documents contained in any file of the Department related to the appellant are to be deemed admissible.

§101.873.Order of Proceedings.

(a) A case shall be called to order by the impartial hearing officer.

(b) Proceedings shall be conducted according to the following:

(1) The appellant may state briefly the nature of the claim or defense, what the appellant expects to prove, and the relief sought. Immediately thereafter, the Department may make a similar statement, and any other parties will be afforded similar rights as determined by the impartial hearing officer. The impartial hearing officer may limit the time available for each party or authorized representative with respect to such statement.

(2) Evidence shall then be introduced by the appellant. The Department or Department's authorized representative and any other parties shall have the opportunity to cross-examine each of the appellant's witnesses.

(3) Cross-examination is not limited solely to matters raised on direct examination. Parties or authorized representatives are entitled to redirect and recross-examination.

(4) Unless the statement has already been made, the Department or the Department's authorized representative may briefly state the nature of the claim or defense, what the Department expects to prove, and the relief sought.

(5) Evidence, if any, shall be introduced by the Department. The appellant and any other parties shall have the opportunity to cross-examine each of the Department's witnesses.

(6) Any other parties may make statements and introduce evidence. The appellant and the Department shall have opportunity to cross-examine the other parties' witnesses.

(7) The parties may present rebuttal evidence.

(8) The parties may be allowed closing statements at the discretion of the impartial hearing officer.

(9) The impartial hearing officer may examine any witness and party.

(c) The impartial hearing officer may permit deviations from this order of procedure in the interest of justice or to expedite the proceedings.

(d) Parties shall provide four copies of each exhibit offered.

(e) Evidence may be excluded which is determined by the impartial hearing officer to be irrelevant, immaterial, or unduly repetitious.

§101.875.Transcription of Proceedings.

(a) Unless precluded by law, the parties to a hearing may agree upon a statement of facts, agree to use taped transcriptions as a statement of facts, or agree to the summarization of testimony before the hearing officer; provided, however, that proceedings or any part of them must be transcribed on written request of any party.

(b) The Department shall contract for and bear the cost of hearing transcripts. Nothing provided for in this section limits the Department to a stenographic record of the proceedings.

§101.877.Documentary Evidence and Official Notice.

(a) Documentary evidence may be received in the form of copies or excerpts if the original is not readily available. On request, parties shall be given an opportunity to compare the original and the copy or excerpts.

(b) When numerous similar documents which are otherwise admissible are offered into evidence, the impartial hearing officer may limit the documents received to those which are typical and representative. The impartial hearing officer may also require that an abstract of relevant data from the documents be presented in the form of an exhibit, provided that all parties be given the right to examine the documents from which such abstracts were made.

(1) The Rehabilitation Act of 1973, as amended, 29 United States Code §§701, et. seq.;

(2) Division of Education regulations, 34 Code of Federal Regulations, Part 361;

(3) Texas Human Resources Code, Chapter 91;

(4) Department of Assistive and Rehabilitative Services, Division for Blind Service's State Plan for Vocational Rehabilitation Services;

(5) Department of Assistive and Rehabilitative Services, Division for Blind Service's Vocational Rehabilitation and Independent Living Manuals; and

(6) Texas Administrative Code, Title 40, Part II, Department of Assistive and Rehabilitative Services.

§101.879.Pleadings.

(a) In a formal appeal, all pleadings, for which no other form is prescribed, shall contain:

(1) the name of the party making the pleading;

(2) the names of all other known parties;

(3) a concise statement of the facts alleged and relied upon;

(4) a prayer stating the type of relief, action, or order desired;

(5) any other matter required by law;

(6) a certificate of service, as required by these rules; and

(7) the signature of the party or the party's authorized representative making the pleading.

(b) Any pleading filed pursuant to a formal appeal may be amended up to 14 days prior to the hearing. Amendments filed after that time shall be accepted at the discretion of the impartial hearing officer.

(c) Any pleading may adopt and incorporate, by specific reference thereto, any part of any document or entry in the official files and records of the Department.

(d) All pleadings relating to any matter pending before the Department shall be filed with the impartial hearing officer and all parties.

(e) All pleadings shall be in a format and medium reasonably calculated to provide the required information and must be clear and legible.

(f) Pleadings shall contain the name, address, and telephone number of the party filing the document or the name, telephone number, and business address of the authorized representative.

(g) The party or the party's authorized representative filing the pleading shall include a signed certification that a true and correct copy of the pleading has been served on every other party.

§101.881.Impartial Hearing Officer Decision.

(a) Within 30 days of the hearing completion date, the impartial hearing officer shall issue a decision based on the evidence and which is not inconsistent with the provisions of the approved state plan, the Act, federal vocational rehabilitation regulations, and state regulations and policies that are consistent with federal requirements, and shall provide to the appellant or, if appropriate, the appellant's authorized representative, the commissioner, and the Department's authorized representative a full written report of the findings of fact, conclusions of law, and any other grounds for the decision.

(b) The hearing completion date shall be that date upon which the impartial hearing officer receives the transcript, if any was prepared, of the oral hearing, or, if no transcript was prepared, the date of the adjournment of the hearing.

(d) The impartial hearing officer may prescribe such remedies as are appropriate within the scope of the Vocational Rehabilitation Program or Independent Living Program, whichever is applicable.

(1) The impartial hearing officer may not award monetary damages to any party.

(2) The impartial hearing officer may not prescribe an action affecting the employment of an employee of the Department.

§101.883.Mediation Procedures.

(a) An applicant or eligible individual who is seeking a review under the provisions of this division may request mediation to resolve the dispute. The Department, with the consent of the applicant or eligible individual, may also originate the request for mediation.

(b) Mediation is voluntary on the part of the parties and must not be used to deny or delay the right of an individual to a hearing under this subsection, or to deny any other right afforded by the Rehabilitation Act, and is conducted by a qualified and impartial mediator who is trained in effective mediation techniques.

(d) Upon receiving a request for mediation, the Commissioner shall either:

(1) select an individual from a list of qualified mediators who are knowledgeable in laws and regulations relating to the provision of vocational rehabilitation or independent living services, whichever may be applicable to the dispute, or

(2) inform the consumer that the agency does not believe mediation will be effective in resolving the dispute and the agency cannot voluntarily participate in the mediation process.

(e) Sessions in the mediation process shall be coordinated by the mediator in a timely manner at a location convenient to both parties in the dispute.

(f) All discussions that occur during the mediation sessions are confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding. The mediator may require the parties to sign a confidentiality pledge prior to the commencement of the mediation process.

(g) Any agreement reached through the mediation process shall be documented in a written mediation agreement and signed by the parties to the dispute. The agreement then becomes a part of the consumer record.

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 April 30, 2007.

TRD-200701633

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

3. DIVISION FOR REHABILITATION SERVICES APPEALS AND HEARING PROCEDURES

40 TAC §§101.901, 101.903, 101.905, 101.907, 101.909, 101.911

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

§101.901.Purpose and Scope.

(a) Purpose.

(1) The purpose of these rules is to provide the Division for Rehabilitation Services with a system for the institution, conduct, and determination of "due process hearings" and "mediation" as those terms are defined herein. These rules shall be liberally construed in accordance with the purpose for which they were adopted. These rules inform all applicants and persons served by DRS of their due process right to appeal when they are dissatisfied with any determination made by a rehabilitation counselor or agency official regarding the furnishing or denial of services.

(2) The procedures implemented by this Chapter ensure that an applicant or eligible individual who is dissatisfied with any determination made by personnel of the Division that affects the provision of vocational rehabilitation services may request, or, if appropriate, may request through the individual's representative, a timely review of that determination.

(b) Authority. These rules are created pursuant to the Rehabilitation Act of 1973, as amended, 29 United States Code Annotated (USCA) §§701 et seq. and Department of Education Regulations at 34 Code of Federal Regulations (CFR), Part 361. Federal laws and regulations prevail over state laws and regulations. The Administrative Procedure Act, Texas Government Code Annotated, §§2001.001 et seq. does not apply to consumer administrative due process hearings which are conducted pursuant to federal law.

(1) This chapter applies to consumer (applicant) appeals, mediations, and hearings before the Division for Rehabilitation Services.

(2) These rules shall be construed to insure fair and expeditious determinations.

(3) These rules may supplement the procedures required by law.

(d) Source: 34 CFR §361.57(a).

§101.903.Definitions.

(a) Applicant--An individual who has applied for services under the Act, but for whom an eligibility determination has not been made.

(b) Commissioner--the commissioner of the Department of Assistive and Rehabilitative Services.

(d) Division--the Division for Rehabilitation Services.

(e) Eligible individual--An individual who has been determined to be eligible for services by the Division pursuant to the Act and Division rules. As used in these rules, unless specifically denoted, the terms "eligible individual" and "consumer" are synonymous.

(f) Appeal--The timely filing of a Petition for Due Process Hearing due to a consumer's continued dissatisfaction with a decision of the Division for Rehabilitation Services regarding the furnishing or denial of services, followed by a formal due process hearing conducted under these rules by an impartial hearing officer regarding allegations set forth in the consumer's Petition for Due Process Hearing regarding the furnishing or denial of services. This term includes pre-hearing conferences.

(g) Impartial hearing officer:

(1) Impartial hearing officer means an individual who:

(A) Is not an employee of a public agency (other than an administrative law judge, hearing examiner, or employee of an institution of higher education);

(B) Is not a member of the Rehabilitation Council of Texas;

(D) Has knowledge of the delivery of vocational rehabilitation services, the State plan, and the Federal and State regulations governing the provision of services;

(E) Has received training with respect to the performance of official duties; and

(F) Has no personal, professional, or financial interest that would be in conflict with the objectivity of the individual.

(2) An individual is not considered to be an employee of a public agency for the purposes of this definition solely because the individual is paid by the agency to serve as a hearing officer.

(3) Source: 34 CFR §361.5(b)(25).

(h) Mediation--A voluntary process by which applicants and eligible individuals who have requested appeals may attempt resolution of disputes with the Division for Rehabilitation Services involving determinations affecting the provision of vocational rehabilitation services through the use of a trained mediator.

(i) Hearings Coordinator--An individual within the Department of Assistive and Rehabilitative Services who provides, among other functions, administrative support to the impartial hearing officer during the appeal process and is the point of contact for consumer's questions about due process hearings.

(j) Qualified and impartial mediator:

(1) Qualified and impartial mediator means an individual who:

(A) Is not an employee of a public agency (other than an administrative law judge, hearing examiner, employee of a State office of mediators, or employee of an institution of higher education);

(B) Is not a member of the Rehabilitation Council of Texas;

(D) Is knowledgeable of the vocational rehabilitation program and the applicable Federal and State laws, regulations, and policies governing the provision of vocational rehabilitation services;

(E) Has been trained in effective mediation techniques consistent with any State-approved or -recognized certification, licensing, registration, or other requirements; and

(F) Has no personal, professional, or financial interest that would be in conflict with the objectivity of the individual during the mediation proceedings.

(2) An individual serving as a mediator is not considered to be an employee of the Department for the purposes of this definition solely because the individual is paid by the Department to serve as a mediator.

(3) Source: 34 CFR §361.5(b)(43).

§101.905.General Requirements.

(a) Notification. An applicant or eligible individual or, as appropriate, the individual's representative, will be provided notice of:

(1) The right to obtain review of State unit determinations that affect the provision of vocational rehabilitation services through an impartial due process hearing under §101.907(b) of this title (relating to Mediation and Due Process Hearings);

(2) The right to pursue mediation under §101.907(a) of this title (relating to Mediation and Due Process Hearings) with respect to determinations made by designated State unit personnel that affect the provision of vocational rehabilitation services to an applicant or eligible individual;

(3) The requirement that requests for mediation and due process hearings must be filed with the DARS Hearings Coordinator, at the address provided in §101.903(i) of this title (relating to Definitions);

(4) The manner in which a mediator or impartial hearing officer may be selected consistent with the requirements of §101.907(a) and §101.907(b) of this title (relating to Mediation and Due Process Hearings); and

(5) The availability of the client assistance program, established under 34 CFR part 370, to assist the applicant or eligible individual during mediation sessions or impartial due process hearings.

(b) Timing. Notice described in subsection (a) of this section will be provided in writing:

(1) At the time the individual applies for vocational rehabilitation services;

(2) At the time the individual is assigned to a category in the Division's order of selection, if an order of selection under 34 CFR §361.36 has been established;

(3) At the time the IPE is developed; and

(4) Whenever vocational rehabilitation services for an individual are reduced, suspended, or terminated.

(1) Provide an applicant or eligible individual or, as appropriate, the individual's representative with an opportunity to submit during mediation sessions or due process hearings evidence and other information that supports the applicant's or eligible individual's position; and

(2) Allow an applicant or eligible individual to be represented during mediation sessions or due process hearings by counsel or other advocate selected by the applicant or eligible individual.

(3) Require correspondence to be addressed to Hearings Coordinator, Department of Assistive and Rehabilitative Services, Legal Services, 4800 North Lamar Blvd., Suite 300, Austin, TX 78756-3178.

(d) Impact on provision of services. The Division will not institute a suspension, reduction, or termination of vocational rehabilitation services being provided to an applicant or eligible individual, including evaluation and assessment services and IPE development, pending a resolution through mediation, pending a decision by a hearing officer or reviewing official unless:

(1) The individual or, in appropriate cases, the individual's representative requests a suspension, reduction, or termination of services; or

(2) The Division has evidence that the services have been obtained through misrepresentation, fraud, collusion, or criminal conduct on the part of the individual or the individual's representative.

(e) Ineligibility. Applicants who are found ineligible for vocational rehabilitation services and previously eligible individuals who are determined to be no longer eligible for vocational rehabilitation services pursuant to federal rules at 34 CFR §361.43 are permitted to challenge the determinations of ineligibility under the procedures described in this division.

(f) Source: 34 CFR §361.57(b).

§101.907.Mediation and Due Process Hearings.

(a) Mediation.

(1) As required under §101.905(a)(2) of this title (relating to General Requirements), an applicant or eligible individual and the Department may resolve disputes involving Division determinations that affect the provision of vocational rehabilitation services through a mediation process that is available, at a minimum, whenever an applicant or eligible individual or, as appropriate, the individual's representative requests an impartial due process hearing under this rule.

(2) The following procedures apply to mediation:

(A) Participation in the mediation process is voluntary on the part of the applicant or eligible individual, as appropriate, and on the part of the Department;

(B) Use of the mediation process will not be used to deny or delay the applicant's or eligible individual's right to pursue resolution of the dispute through an impartial hearing held within the time period specified in subsection (b)(1) of this section or any other rights provided under this Division. At any point during the mediation process, either party or the mediator may elect to terminate the mediation. In the event mediation is terminated, either party may pursue resolution through an impartial hearing;

(C) The mediation process will be conducted by a qualified and impartial mediator, as defined in §101.903(j) of this title (relating to Definitions), who must be selected from a list of qualified and impartial mediators maintained by the State, by agreement between the Commissioner and the applicant or eligible individual or, as appropriate, the individual's representative; and

(D) Mediation sessions will be scheduled and conducted in a timely manner and are held in a location and manner that is convenient to the parties to the dispute.

(3) Discussions that occur during the mediation process will be kept confidential and will not be used as evidence in any subsequent due process hearings or civil proceedings, and the parties to the mediation process may be required to sign a confidentiality pledge prior to the commencement of the process.

(4) An agreement reached by the parties to the dispute in the mediation process must be described in a written mediation agreement that is developed by the parties with the assistance of the qualified and impartial mediator and signed by both parties. Copies of the agreement must be sent to both parties.

(5) The costs of the mediation process will be paid by the Department. The Department will not pay for any costs related to the representation of an applicant or eligible individual authorized under §101.905(c)(2) of this title (relating to General Requirements).

(6) As required by §101.905(c) of this title (relating to General Requirements), the applicant or eligible individual or, if appropriate, the individual's representative will:

(A) be given the opportunity to submit during mediation sessions evidence and other information that supports the applicant's or eligible individual's position; and

(B) be allowed to be represented during mediation sessions by counsel or other advocate selected by the applicant or eligible individual.

(b) Impartial due process hearings. The following formal review procedures, as required under §101.905(a)(1) of this title (relating to General Requirements), are established:

(1) All hearings will be held within the period of time prescribed by §101.911 of this title (relating to Time for Hearing);

(2) The applicant or eligible individual or, if appropriate, the individual's representative will:

(A) be given the opportunity to submit during due process hearings evidence and other information that supports the applicant's or eligible individual's position, as required by §101.905(c) of this title (relating to General Requirements); and

(B) be allowed to be represented during due process hearings by counsel or other advocate selected by the applicant or eligible individual, as required by §101.905(c) of this title (relating to General Requirements); and

(C) be given the opportunity to present witnesses during the hearing and to examine all witnesses and other relevant sources of information and evidence;

(3) The impartial hearing officer will:

(A) Make a decision based on the provisions of the approved State plan, the Act, Federal vocational rehabilitation regulations, and State regulations and policies that are consistent with Federal requirements; and

(B) Provide to the individual or, if appropriate, the individual's representative and to the State unit a full written report of the findings and grounds for the decision within 30 days of the completion of the hearing; and

(4) The hearing officer's decision is final, except that a party involved in a hearing may request reconsideration under §101.811 of this title (relating to Motion for Reconsideration), and may bring a civil action under §101.821 of this title (relating to Civil Action).

(1) From a list of qualified impartial hearing officers maintained by the Department. Impartial hearing officers included on the list will be jointly identified by the State unit and the State Rehabilitation Council; and

(2) On a random basis, or by agreement between the DARS Commissioner and the applicant or eligible individual or, as appropriate, the individual's representative.

(d) Source: 34 CFR §361.57(d) - (f).

§101.909.Finality of the Hearing Officer's Decision.

The decision of the impartial hearing officer under §101.811 of this title (relating to Motion for Reconsideration) is the final decision of the Department. Any other decision under §101.907 of this title (relating to Mediation and Due Process Hearings) becomes the final decision of the Department if a timely motion for reconsideration is not filed.

§101.911.Time for Hearing.

(a) A hearing conducted by an impartial hearing officer, selected in accordance with §101.907(c) of this title (relating to Mediation and Due Process Hearings), will be held within 60 days of an applicant's or eligible individual's request for review of a determination made by personnel of DRS that affects the provision of vocational rehabilitation services to the individual, unless informal resolution or a mediation agreement is achieved prior to the 60th day or the parties agree to a specific extension of time.

(b) Source: 34 CFR §361.57(e)(1).

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 April 30, 2007.

TRD-200701634

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Chapter 101. ADMINISTRATIVE RULES AND PROCEDURES

The Texas Health and Human Services Commission proposes amendments to the rules of the Department of Assistive and Rehabilitative Services in Title 40, Part 2, Chapter 101, concerning Administrative Rules and Procedures. This proposal repeals subchapters F, G, H, J, K and L of Chapter 101 and replaces with rules in new subchapters A, B, C, and D of Chapter 101.

The following subchapters, divisions, and sections in Title 40, Chapter 101, are to be repealed:

Subchapter F, Administrative Rules and Procedures Pertaining to Blind Services

Division 1, General Rules, §§101.3601, 101.3603, 101.3605, 101.3607, 101.3609, 101.3611, 101.3613, 101.3615, and 101.3617.

Division 2, Commission Board Procedures, §§101.3641, 101.3643, 101.3645, and 101.3647.

Division 3, Access to Public Information, §§101.3681, 101.3683, 101.3685, 101.3687, and 101.3689.

Division 4, Contract Dispute Resolution, §§101.3711, 101.3713, 101.3715, 101.3717, 101.3719, 101.3721, 101.3723, 101.3725, 101.3727, 101.3729, 101.3731, 101.3733, 101.3735, 101.3737, 101.3739, 101.3741, 101.3743, 101.3745, 101.3747, 101.3749, 101.3751, 101.3753, 101.3755, 101.3757, 101.3759, 101.3761, 101.3763, 101.3765, and 101.3767.

Division 5, Purchase of Goods and Services by the Commission, §§101.3801, 101.3807, and 101.3811.

Subchapter G, Administrative Rules and Procedures Pertaining to Rehabilitation Services

Division 1, General Rules, §§101.4001, 101.4003, 101.4005, 101.4007, 101.4009, 101.4011, 101.4013, 101.4015, 101.4017, 101.4019, 101.4021, 101.4023, 101.4025, 101.4027, 101.4029, 101.4031, 101.4033, 101.4035, 101.4037, 101.4039, and 101.4041.

Division 2, Legal Services, §101.4201 and §101.4203.

Division 3, Special Rules and Policies §§101.4223, 101.4225, 101.4227, 101.4229, 101.4231, 101.4233, 101.4235, 101.4237, 101.4239, and 101.4241.

Subchapter H, Purchase of Goods and Services for Rehabilitation Services

Division 4, Purchase of Goods and Services, §101.4525 and §101.4527.

Division 11, Historically Underutilized Businesses, §§101.5051, 101.5053, 101.5055, and 101.5057.

Division 13, Miscellaneous Requirements, §101.5201 and §101.5205.

Division 14, Contract Administration, §§101.5211, 101.5213, 101.5231, 101.5233, and 101.5235.

Subchapter J, Administrative Rules and Procedures Pertaining to Deaf and Hard of Hearing Services

Division 1, General Provisions, §§101.5801, 101.5803, 101.5805, 101.5807, 101.5809, 101.5811, 101.5813, 101.5815, 101.5817, 101.5819, 101.5821, 101.5823, 101.5825, 101.5827, 101.5829, 101.5831, 101.5833, 101.5835, 101.5837, 101.5839, 101.5841, 101.5843, 101.5845, 101.5847, 101.5849, 101.5851, 101.5853, 101.5855, 101.5857, 101.5859, 101.5861, and 101.5863.

Division 3. Program Standards and Procedures, §101.6401.

Division 4, Rulemaking Procedures, §§101.6451, 101.6453, 101.6455, 101.6457, 101.6459, and 101.6461.

Division 5, Gifts, Grants and Donations, §§101.6601, 101.6603, 101.6605, 101.6607, 101.6609, 101.6611, 101.6613, and 101.6615.

Division 6, Fees, §§101.6701, 101.6703, and 101.6705.

Division 7, Cooperative Activities, §101.6801.

Division 8, Memoranda of Understanding With State Agencies, §101.6821.

Subchapter K, Administrative Rules and Procedures Pertaining to the Rehabilitation Council of Texas, §101.8103.

Subchapter L, Administrative Rules and Procedures Pertaining to the State Independent Living Council, §101.9101.

The following new sections are proposed:

Subchapter A, General Rules, §§101.101, 101.103, 101.105, 101.107, 101.109, 101.111, 101.113, 101.115, 101.117, 101.119, 101.121, 101.123 and 101.131.

Subchapter B, Purchase of Goods and Services, §§101.201, 101.203, 101.209, 101.211 and 101.213.

Subchapter C, Historically Underutilized Businesses, §§101.551, 101.553, 101.555 and 101.557.

Subchapter D, Councils and Committees, §§101.601, 101.603 and 101.605.

The repeals and replacements are being proposed to consolidate separate administrative and purchasing rules from the four legacy agencies of the department, the Texas Commission for the Blind, Texas Rehabilitation Commission, Texas Commission for the Deaf and Hard of Hearing, and the Interagency Council on Early Childhood Intervention, into agency-wide administrative and purchasing rules applicable to the entire Department of Assistive and Rehabilitative Services as provided by House Bill 2292, 78th Legislature, Regular Session.

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

Subchapter F. ADMINISTRATIVE RULES AND PROCEDURES PERTAINING TO BLIND SERVICES

1. GENERAL RULES

40 TAC §§101.3601, 101.3603, 101.3605, 101.3607, 101.3609, 101.3611, 101.3613, 101.3615, 101.3617

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

The repeals 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.

§101.3601.Complaints.

§101.3603.Contracts, Permits, and Licenses.

§101.3605.Reimbursement of Expenses of Witnesses.

§101.3607.Reimbursement for Cost of Special Aids or Attendant.

§101.3609.Criminal History Checks on Applicants for Employment.

§101.3611.Rates for Medical Services.

§101.3613.Payment of Shift Differentials.

§101.3615.Assignment of Commission Vehicles.

§101.3617.Historically Underutilized Businesses.

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 April 30, 2007.

TRD-200701607

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

2. COMMISSION BOARD PROCEDURES

40 TAC §§101.3641, 101.3643, 101.3645, 101.3647

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

§101.3641.Meetings of the Board.

§101.3643.Petition for Adoption of Rules.

§101.3645.Opportunity to Appear Before the Commission's Board.

§101.3647.Public Hearings.

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 April 30, 2007.

TRD-200701608

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

3. ACCESS TO PUBLIC INFORMATION

40 TAC §§101.3681, 101.3683, 101.3685, 101.3687, 101.3689

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

§101.3681.Requests for Public Information.

§101.3683.Public Information Copy Formats.

§101.3685.Charges for Providing Copies of Public Information.

§101.3687.Processing Complaints of Overcharges.

§101.3689.Access to Public Information for Inspection and Copying.

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 April 30, 2007.

TRD-200701609

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

4. CONTRACT DISPUTE RESOLUTION

40 TAC §§101.3711, 101.3713, 101.3715, 101.3717, 101.3719, 101.3721, 101.3723, 101.3725, 101.3727, 101.3729, 101.3731, 101.3733, 101.3735, 101.3737, 101.3739, 101.3741, 101.3743, 101.3745, 101.3747, 101.3749, 101.3751, 101.3753, 101.3755, 101.3757, 101.3759, 101.3761, 101.3763, 101.3765, 101.3767

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

§101.3711.Purpose.

§101.3713.Applicability.

§101.3715.Definitions.

§101.3717.Prerequisites to Suit.

§101.3719.Sovereign Immunity.

§101.3721.Contractor Claim.

§101.3723.Agency Counterclaim.

§101.3725.Request for Voluntary Disclosure of Additional Information.

§101.3727.Negotiation.

§101.3729.Negotiation Timetable.

§101.3731.Conduct of Negotiation.

§101.3733.Settlement Approval Procedures.

§101.3735.Settlement Agreement after Negotiation.

§101.3737.Costs of Negotiation.

§101.3739.Request for Contested Case Hearing.

§101.3741.Option to Mediate.

§101.3743.Mediation Timetable.

§101.3745.Request for Referral.

§101.3747.Conduct of Mediation.

§101.3749.Agreement to Mediate.

§101.3751.Qualifications and Immunity of the Mediator.

§101.3753.Confidentiality of Mediation and Final Settlement Agreement.

§101.3755.Costs of Mediation.

§101.3757.Settlement Approval Procedures.

§101.3759.Initial Settlement Agreement.

§101.3761.Final Settlement Agreement.

§101.3763.Referral to the State Office of Administrative Hearings.

§101.3765.Other Assisted Negotiation Processes.

§101.3767.Methods of Other Assisted Negotiation and Mediation Processes.

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 April 30, 2007.

TRD-200701610

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

5. PURCHASE OF GOODS AND SERVICES BY THE COMMISSION

40 TAC §§101.3801, 101.3807, 101.3811

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

§101.3801.Purpose.

§101.3807.Commitment to Fair and Open Competition.

§101.3811.Compliance with Federal Requirements.

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 April 30, 2007.

TRD-200701611

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Subchapter G. ADMINISTRATIVE RULES AND PROCEDURES PERTAINING TO REHABILITATION SERVICES

1. GENERAL RULES

40 TAC §§101.4001, 101.4003, 101.4005, 101.4007, 101.4009, 101.4011, 101.4013, 101.4015, 101.4017, 101.4019, 101.4021, 101.4023, 101.4025, 101.4027, 101.4029, 101.4031, 101.4033, 101.4035, 101.4037, 101.4039, 101.4041

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

§101.4001.Definitions.

§101.4003.Declaration of Purpose and Policy.

§101.4005.Legal Basis.

§101.4007.Affirmative Action for Equal Employment Opportunity.

§101.4009.Nondiscrimination in Federally Assisted Programs and Federal Grants.

§101.4011.Services for Groups of Individuals with Disabilities.

§101.4013.Standards for Facilities and Providers of Services.

§101.4015.Confidentiality

§101.4017.Cooperation with Other Public Agencies.

§101.4019.Comparable Services and Benefits.

§101.4021.Membership of the TRC Board.

§101.4023.Appointments.

§101.4025.Appointment of Chair.

§101.4027.Meetings.

§101.4029.Quorum.

§101.4031.Functions of the Board.

§101.4033.Meetings Open to the Public.

§101.4035.Registration of Speakers before the Board.

§101.4037.Petition for Adoption of Rules.

§101.4039.Excused Absences.

§101.4041.Responsibilities of the Commissioner.

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 April 30, 2007.

TRD-200701612

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

2. LEGAL SERVICES

40 TAC §101.4201, §101.4203

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

§101.4201.Collections.

§101.4203.Subrogation.

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 April 30, 2007.

TRD-200701613

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

3. SPECIAL RULES AND POLICIES

40 TAC §§101.4223, 101.4225, 101.4227, 101.4229, 101.4231, 101.4233, 101.4235, 101.4237, 101.4239, 101.4241

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

§101.4223.HIV/AIDS Workplace Guidelines.

§101.4225.Sick Leave Pool.

§101.4227.Board Policies.

§101.4229.Criminal Conviction Record Information.

§101.4231.Charge for Copies of Public Records.

§101.4233.Education Assistance Program.

§101.4235.Criminal History Record Information.

§101.4237.Restriction on Assignment of Vehicles.

§101.4239.Privacy Policies.

§101.4241.Complaints.

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

Filed with the Office of the Secretary of State on April 30, 2007.

TRD-200701614

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Subchapter H. PURCHASE OF GOODS AND SERVICES FOR REHABILITATION SERVICES

4. PURCHASE OF GOODS AND SERVICES

40 TAC §101.4525, §101.4527

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

§101.4525.Alternative Purchasing Methods - Schedule of Rates for Medical Services.

§101.4527.Schedule of Rates.

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 April 30, 2007.

TRD-200701615

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

11. HISTORICALLY UNDERUTILIZED BUSINESSES

40 TAC §§101.5051, 101.5053, 101.5055, 101.5057

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

§101.5051.Purpose.

§101.5053.Applicability.

§101.5055.Definitions.

§101.5057.Adoption of Rules.

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 April 30, 2007.

TRD-200701616

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

13. MISCELLANEOUS REQUIREMENTS

40 TAC §101.5201, §101.5205

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

§101.5201.Standards of Conduct for Procurement Personnel.

§101.5205.Purchases for Individual Clients.

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 April 30, 2007.

TRD-200701617

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

14. CONTRACT ADMINISTRATION

40 TAC §§101.5211, 101.5213, 101.5231, 101.5233, 101.5235

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

§101.5211.Principles of Contract Administration.

§101.5213.Criteria for Determining when Contract is Required.

§101.5231.Contract Monitoring Principles.

§101.5233.Risk Assessment.

§101.5235.Monitoring Performance.

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 April 30, 2007.

TRD-200701618

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Subchapter J. ADMINISTRATIVE RULES AND PROCEDURES PERTAINING TO DEAF AND HARD OF HEARING SERVICES

1. GENERAL PROVISIONS

40 TAC §§101.5801, 101.5803, 101.5805, 101.5807, 101.5809, 101.5811, 101.5813, 101.5815, 101.5817, 101.5819, 101.5821, 101.5823, 101.5825, 101.5827, 101.5829, 101.5831, 101.5833, 101.5835, 101.5837, 101.5839, 101.5841, 101.5843, 101.5845, 101.5847, 101.5849, 101.5851, 101.5853, 101.5855, 101.5857, 101.5859, 101.5861, 101.5863

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

§101.5801.Statutory Authority.

§101.5803.Definitions.

§101.5805.Authority.

§101.5807.Severability.

§101.5809.Functions and Responsibilities.

§101.5811.Composition.

§101.5813.Terms of Office.

§101.5815.Appointment of Chairperson.

§101.5817.Vacancies.

§101.5819.Meetings.

§101.5821.Opportunity to Appear Before the Commission.

§101.5823.Public Hearings.

§101.5825.Services for Deaf and Hard of Hearing Individuals.

§101.5827.Services for Elderly Deaf and Hard of Hearing Individuals.

§101.5829.Camp Sign.

§101.5831.Certificate of Deafness for Tuition Waiver.

§101.5833.Elections of Officers.

§101.5835.Duties of Officers.

§101.5837.Appointment of the Executive Director.

§101.5839.Funding.

§101.5841.Discrimination Prohibited.

§101.5843.Filing a Complaint.

§101.5845.Reports.

§101.5847.Public Information.

§101.5849.Public Access to Internal Procedural Documents.

§101.5851.Task Force Purpose.

§101.5853.Responsibility of Task Force Members.

§101.5855.Term of Membership, Vacancies and Officers.

§101.5857.Qualifications of Task Force Members.

§101.5859.Purchase of Goods and Services.

§101.5861.Contract Dispute Resolution.

§101.5863.Historically Underutilized Businesses.

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 April 30, 2007.

TRD-200701619

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

3. PROGRAM STANDARDS AND PROCEDURES

40 TAC §101.6401

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

The repeal is 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.

§101.6401.Approved Courses and Workshops for the Instruction and Continuing Education of Interpreters for the Deaf.

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 April 30, 2007.

TRD-200701620

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

4. RULEMAKING PROCEDURES

40 TAC §§101.6451, 101.6453, 101.6455, 101.6457, 101.6459, 101.6461

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

§101.6451.Initiation.

§101.6453.Notice.

§101.6455.Public Comments.

§101.6457.Petitions for Adoption of Rules.

§101.6459.Validity.

§101.6461.Terminology.

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 April 30, 2007.

TRD-200701621

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

5. GIFTS, GRANTS, AND DONATIONS

40 TAC §§101.6601, 101.6603, 101.6605, 101.6607, 101.6609, 101.6611, 101.6613, 101.6615

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

§101.6601.Purpose.

§101.6603.Definitions.

§101.6605.General Authority to Accept Gifts, Grants, and Donations.

§101.6607.Solicitation.

§101.6609.Investing or Depositing.

§101.6611.Restricted/Unrestricted.

§101.6613.Transfer.

§101.6615.Standards of Conduct Between Employees and Officers and Donors.

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 April 30, 2007.

TRD-200701622

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

6. FEES

40 TAC §§101.6701, 101.6703, 101.6705

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

§101.6701.Purpose.

§101.6703.Interpreter Services for the Deaf and Hard of Hearing.

§101.6705.Waiver of Fees.

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 April 30, 2007.

TRD-200701623

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

7. COOPERATIVE ACTIVITIES

40 TAC §101.6801

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

§101.6801.Coordination with Other Organizations.

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 April 30, 2007.

TRD-200701624

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

8. MEMORANDA OF UNDERSTANDING WITH STATE AGENCIES

40 TAC §101.6821

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

§101.6821.Purpose.

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 April 30, 2007.

TRD-200701625

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Subchapter K. ADMINISTRATIVE RULES AND PROCEDURES PERTAINING TO THE REHABILITATION COUNCIL OF TEXAS

40 TAC §101.8103

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

§101.8103.Rehabilitation Council of Texas.

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 April 30, 2007.

TRD-200701626

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Subchapter L. ADMINISTRATIVE RULES AND PROCEDURES PERTAINING TO THE STATE INDEPENDENT LIVING COUNCIL

40 TAC §101.9101

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

§101.9101.State Independent Living Council.

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 April 30, 2007.

TRD-200701627

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Subchapter A. GENERAL RULES

40 TAC §§101.101, 101.103, 101.105, 101.107, 101.109, 101.111, 101.113, 101.115, 101.117, 101.119, 101.121, 101.123, 101.131

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

§101.101.Definitions.

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

(1) Department/DARS--The Department of Assistive and Rehabilitative Services.

(2) Counselor--An employee of the Department who is trained to provide vocational guidance and counseling and meets the minimum qualifications designated in a functional job description.

(3) Extended employment--An occupation-oriented facility operated by a not-for-profit agency, public or private, which, except for its staff, employs only individuals with mental or physical disabilities.

(4) State plan--The plan for vocational rehabilitation services submitted by the Department of Assistive and Rehabilitative Services, Division for Rehabilitation Services and Division for Blind Services in compliance with the Rehabilitation Act of 1973, as amended, Title I.

§101.103.Declaration of Purpose and Policy.

(a) The Department is the principal authority in the state on matters relating to rehabilitation of individuals with disabilities. All other state agencies engaged in rehabilitation activities and related services to individuals shall coordinate those activities and services with the Department.

(b) It is the policy of the State of Texas to provide rehabilitation and related services to eligible individuals with disabilities so that they may prepare for and engage in a gainful occupation or achieve maximum personal independence for the individual.

(c) The Department provides services subject to the availability of funds and in accordance with priorities provided in the state plans as required by federal law and regulation, policies established by the Department, and contracts with the providers of such services.

(d) Under operational policies established by the Department, the commissioner is responsible for the administration, supervision, planning, and direction of all rehabilitation service programs.

(e) Any person who believes that he or she is eligible for rehabilitation services may contact any Department office or employee for assistance.

§101.105.Opportunities for Citizen Participation.

In addition to other procedures listed in Part 2 of this title (relating to Department of Assistive and Rehabilitative Services) citizens, including individuals with disabilities and parents of infants and toddlers with disabilities, have the opportunity to:

(1) voice concerns through public representation on the Department committees and boards;

(2) attend and make public comments at public meetings (notification of all public meetings and agenda items are published in the Texas Register);

(3) comment on all proposed rules; and

(4) submit a petition requesting the adoption of rules.

(A) All petitions proposing the adoption of DARS rules shall be submitted in writing to the DARS commissioner. The petition shall contain the following:

(i) the text of the proposed rule prepared in a manner to indicate the words to be added or deleted from the current text, if any;

(ii) a statement of the statutory or other authority under which the rule is to be promulgated; and

(iii) the public benefits anticipated as a result of adopting the rule or the anticipated implications which could result from the failure to adopt the proposed rule.

(B) Requests will be reviewed by DARS staff and recommendation for action will be presented to the Department for action.

§101.107.Privacy Policies.

Pursuant to Chapter 559, Government Code, the Texas Department of Assistive and Rehabilitative Services (DARS) adheres to the following privacy policies.

(1) Right to be informed about information collected. An individual is entitled to be informed about information that DARS collects about the individual unless DARS is allowed to withhold the information from the individual under Government Code, §552.023.

(2) Right to notice about certain information laws and practices.

(A) When DARS collects information about an individual by means of a form that the individual completes and files with DARS in a paper format or in an electronic format on an Internet site, DARS will prominently state, on the paper form and prominently post on the Internet site in connection with the electronic form, that:

(i) with few exceptions, the individual is entitled on request to be informed about the information that DARS collects about the individual;

(ii) under the Government Code, §552.021 and §552.023, the individual is entitled to receive and review the information; and

(iii) under the Government Code, §559.004, the individual is entitled to have DARS correct information about the individual that is incorrect.

(B) When DARS collects information about an individual by means of an Internet site or collects information about the computer network location or identity of a user of the Internet site, DARS will prominently post on the Internet site what information is being collected through the site about the individual or about the computer network location or identity of a user of the site, including what information is being collected by means that are not obvious.

(3) Right to correction of incorrect information. DARS has established a procedure under which an individual is entitled to have DARS correct information about the individual that is possessed by DARS and that is incorrect. Individuals should send a written request to DARS, including their full name and mailing address, and identify the incorrect information and provide the correct information. If the information to be corrected is related to a social security disability determination, to or a vocational rehabilitation case, or to a DARS personnel or employment record, the individual's social security number should be included. Any additional material needed to identify the incorrect information or verify the correct information should be attached to the request. The individual may, at his or her option, include with the request a daytime telephone number in the event that DARS needs to call for clarification of the request. The request must be signed, and mailed to Department of Assistive and Rehabilitative Services, ATTN: Records Management Office, 4900 North Lamar Boulevard, Austin, Texas 78751-2316. DARS will acknowledge receipt of the request, and will notify the requester of final action taken.

(4) Applicability of and construction with Public Information Law. Government Code, Chapter 552 governs the charges that DARS may impose on a person who requests information that DARS collects about himself or herself. However, DARS will not charge an individual to correct information about the individual.

§101.109.Complaints.

(a) Complaints may be filed with the agency in writing via mail, e-mail or by facsimile and by videotape for individuals who use sign language to communicate. Complaints should be directed to the DARS Customer Service Representative or to the Commissioner.

(b) Consumers and service recipients may be notified of the name, mailing address, and telephone number of the Department for the purpose of directing complaints to the Department by inclusion of the information:

(1) on each registration form, application, or written contract relating to participation in a program that is funded in any part by money derived from or through the Department;

(2) on a sign that is prominently displayed in the place of business of each person or entity engaging in a program that is funded in any part by money derived from or through the Department;

(3) in a bill for service provided by a person or entity engaging in a program that is funded in any part by money derived from or through the Department; or

(4) in other media for dissemination of information as determined by the Department.

(d) Further information on complaints specifically related to early childhood intervention services may be found in Chapter 108 of this title (relating to Division for Early Childhood Intervention Services).

§101.111.Cooperation with Other Public Agencies.

The Department enters into appropriate cooperative arrangements with, and utilizes the services and facilities of other federal, state, and local public agencies providing services related to the rehabilitation of individuals with disabilities. The Department also works toward maximum coordination and consultation with programs for and relating to the rehabilitation of veterans with disabilities.

§101.113.Criminal History Information on Applicants for Employment.

(a) Within the Department, Criminal History Conviction information obtained from the Texas Department of Public Safety may be used when evaluating applications for employment.

(b) In addition to or instead of that described in subsection (a) of this section, Criminal History Record Information obtained from the Texas Department of Public Safety may be used when evaluating the following applications:

(1) Applications for positions in the Division for Rehabilitation Services (less Office for Deaf and Hard of Hearing Services), and the Division for Disability Determination Services: All applicants whose potential duties include direct contact with consumers of Vocational Rehabilitation Services, Comprehensive Rehabilitation Services, and Independent Living Services in the Division for Rehabilitation Services.

(2) For applicants for positions in the Division for Early Childhood Intervention Services: All applicants whose potential employment involves the delivery of early childhood intervention services or involves direct interactions with or the opportunity to interact and associate with children.

(3) Applications for positions in the Division for Blind Services and DARS Headquarters Administration: All applicants for employment.

(c) Employment with the Department will be denied when an applicant's criminal history contains a felony criminal conviction which has determined by the Commissioner or Assistant Commissioner to make the applicant unfit or unsafe to perform the functions of the job.

(d) Criminal history information other than that described in subsection (b) of this section shall not be disqualifying for employment, but may be considered by the Department in determining the best qualified candidate for a position.

(e) References: Gov't Code, §§411.0985, 411.1131, 411.1142, 411.117.

§101.115.Use of Criminal History Information in Contracting.

Within the Department, Criminal Conviction information obtained from the Texas Department of Public Safety may be used in connection with award and administration of DARS contracts. When used, the terms and conditions of use will be included in the affected contracts.

§101.117.Confidentiality of Consumer Information in Vocational Rehabilitation Programs.

(a) Consumer records.

(1) All personal information made available to Department employees in the course of the administration of rehabilitation services programs, including lists of names, addresses, and records of agency evaluation is confidential.

(2) The use of such information and records is limited to purposes directly connected with the administration of the rehabilitation programs.

(3) Information is not to be disclosed directly or indirectly, other than in the administration of the rehabilitation programs, unless the consent of the consumer has been obtained in writing, in compliance with a court order, or in accordance with a federal or state law or regulation. Information containing identifiable personal information may not be shared with advisory or other bodies that do not have official responsibilities for administration of the program.

(4) Upon a consumer's request, information is released to a consumer or, as appropriate, his parent, guardian, or other representative. If, in the opinion of the counselor, release of a particular document in the consumer case file will have a harmful effect on the consumer, the consumer shall be notified that there is information in the case file that can only be released to an appropriate representative designated in writing by the consumer.

(5) All consumer information is the property of the Department.

(b) Other records.

(1) Release of consumer records must be made pursuant to federal law and regulations.

(2) The Department may provide to and receive from any state agency other non-confidential information for the purpose of increasing and enhancing services to consumers and improving agency operations.

§101.119.Confidentiality of Consumer Information in the Specialized Telecommunications Assistance Program.

(a) All information made available to Department employees in the course of the application process for the Specialized Telecommunications Assistance Program (STAP), administered under Chapter 109 of this title (relating to Office for Deaf and Hard of Hearing Services), including lists of names and addresses, is limited to use for purposes directly connected with the administration of the STAP.

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

§101.121.Comparable Services and Benefits.

In providing rehabilitation services, the Department considers any comparable services and benefit available to a consumer under any other program.

§101.123.Fees for Department Publications.

The Department establishes and charges reasonable fees for some or all Department publications to cover the Department's publication costs. However, the Department will waive the fee if a person who is disabled is financially unable to pay for the publication. The determination whether an individual is financially unable to pay for a publication will be based upon a review of the circumstances including information submitted by the person who is disabled.

§101.131.Payment of Shift Differentials.

(a) The Assistant Commissioners are authorized to pay a shift differential to eligible employees in the vocational rehabilitation program. The shift differential shall be paid in addition to the employee's regular base pay, exclusive of longevity and benefit replacement pay.

(b) The Assistant Commissioners are authorized to determine the agency positions which are eligible to receive shift differential payments. The rate of payment shall be a percentage of the employee's monthly regular base pay, not to exceed the maximum allowed by state law, in relation to the number of hours the employee regularly works outside the work hours of Monday through Friday, 8:00 a.m. to 5:00 p.m.

(c) This section shall not apply to those employees whose work hours have been adjusted according to agency policies concerning staggered work hours.

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 April 30, 2007.

TRD-200701628

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Subchapter B. PURCHASE OF GOODS AND SERVICES

40 TAC §§101.201, 101.203, 101.209, 101.211, 101.213

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

§101.201.Purchases for Individual Consumers.

Purchases of goods and/or services for individual consumers must be consistent with the Individualized Plan for Employment (IPE) which is jointly developed by the DRS or DBS Counselor and eligible consumer.

(1) The IPE includes, but is not limited to:

(A) goals and intermediate objectives for which the goods and services are necessary;

(B) estimated date of initiation of the service, and the estimated duration of the service;

(D) participation by the consumer in the cost of the goods and services;

(E) terms and conditions applicable to the purchase of the goods and services; and

(F) comparable services and benefits applicable to the services to be purchased.

(2) In developing an individual's IPE, DARS provides the individual, or assists the individual in acquiring, information necessary to make an informed choice from among alternative services and providers of services that are needed to achieve the goal of the IPE.

(3) In developing an IPE, and prior to purchasing any service for a consumer, DARS determines whether comparable services and benefits exist under any other program, and whether those services or benefits are available to the individual consumer. If comparable services or benefits exist and are available to the consumer within a reasonable period of time, DARS shall use those comparable services and/or benefits to meet, in whole or in part, the cost of services. If DARS and another resource are paying for a good or service for a consumer, the payment by the other resource must be applied first.

(4) DARS may establish reasonable fee schedules for purchased consumer goods and services. These fee schedules are designed to ensure the lowest reasonable cost and best value.

(5) DARS issues purchase orders for all purchases of goods and services for individual consumers. Purchase orders serve as prior written authorization of the purchase, establish the terms and conditions of the purchase, and obligate DARS to pay for the goods and/or services which are delivered by the provider and received by the consumer.

(6) DARS establishes and maintains policies for competitive purchasing of consumer goods and services which exceed the unit dollar value specified.

§101.203.Standards for Facilities and Providers of Services.

(a) Facilities and providers of services used by the Department in providing vocational rehabilitation services are required to satisfy the following minimum standards.

(1) Staff providing services shall be competent, professionally ethical, and qualified for positions held. Qualifications of staff shall meet all requirements established by recognized professional groups and/or state certification regulations. The facility or provider shall assure that all staff meet minimum qualifications; staff credentials supporting those qualifications shall be on file at the time of hire; and staff credentials shall be made available to any Department monitors.

(2) The facility shall include among the staff, or shall obtain the services of, individuals able to communicate in the native language of applicants and consumers who have limited English speaking ability; and ensure that appropriate modes of communication are used for all consumers.

(3) Providers of vocational rehabilitation services shall take affirmative action to employ and advance in employment qualified individuals with disabilities.

(4) The facility shall provide for such fiscal control and fund accounting as may be necessary to assure proper disbursement and accounting of funds provided by the Department and in accordance to program policy.

(5) The facility shall observe consumers personnel policies and practices which focus on the needs and goals of the individual.

(6) The facility shall maintain accurate and complete records and prepare and distribute reports necessary to the achievement of its goals.

(7) Any facility in which services are provided must be:

(A) such that the safety and health of the staff and consumers are protected;

(B) accessible to individuals receiving services and must comply with the requirements of the Architectural Barriers Act of 1968, the Uniform Accessibility Standards, the Americans with Disabilities Act of 1990, and Section 504 of the Rehabilitation Act.

(b) The Department does not operate, license, certify, or register facilities or providers under the Human Resource Code, §48.036, but does assure that services provided comply with standards set by the Department.

(d) All services provided to consumers of the Department are monitored by the agency.

§101.209.Alternative Purchasing Methods--Rates for Medical Services.

Pursuant to Human Resources Code, §117.074, this rule adopts standards governing the determination of rates paid for medical services provided by the Department. The rates determined under these standards will be reevaluated annually.

(1) Rates will be established based on Medicare and Medicaid schedules for current procedural terminology (CPT). Where Medicare and Medicaid schedules are not applicable, rates that represent best value will be established based upon factors that include reasonable and customary industry standards for each specific service.

(2) Rates will be established at a level adequate to ensure availability of qualified providers, and in adequate numbers to provide assessment and treatment, and within a geographic distribution that mirrors consumer/claimant distribution.

(3) Exceptions to established rates can be made on a case by case basis by the DARS medical director and/or optometric consultant.

§101.211.Schedule of Rates.

Pursuant to Human Resources Code, §117.074, and §101.209 of this title (relating to Alternative Purchasing Methods--Rates for Medical Services), the Executive Commissioner of the Health and Human Services Commission has established a schedule of rates based on the standards adopted under §101.209 of this title. The schedule of rates will be reevaluated annually. Notice will be provided to interested persons and allow those persons to present comments before adopting a new or revised schedule of rates. The schedule of rates may be viewed or copies may be obtained by calling the Department of Assistive and Rehabilitative Services at (800) 628-5115 or visiting the Department at 4800 North Lamar, Austin, Texas, 78756.

§101.213.Contracts for Deaf and Hard of Hearing Services.

(a) Before the Department contracts with or provides a grant to an agency, organization, or individual to provide direct services to persons who are deaf or hard of hearing, the Department makes reasonable efforts to notify all potential service providers of the availability and purpose of the contract or grant.

(b) The notice includes a request that all interested service providers submit within a specified period a contract or grant proposal for the Department's consideration. The notice also states the criteria that the Department will consider in determining which applicant will be awarded the contract or grant.

(c) The Department reviews all proposals submitted under this section and awards the contract or grant to the applicant that the Department determines is best able to provide the needed services. The Department may not award contracts or grants to a former employee of the Office for Deaf and Hard of Hearing Services within two years after the person's employment with the Office ceased.

(d) To ensure an equitable distribution of contract or grant funds, the Department has developed a formula to allocate those funds among the agencies, organizations, or individuals that are awarded the contracts or grants.

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 April 30, 2007.

TRD-200701629

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Subchapter C. HISTORICALLY UNDERUTILIZED BUSINESSES

40 TAC §§101.551, 101.553, 101.555, 101.557

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

§101.551.Purpose.

The purpose of this subchapter is to establish the authority and responsibility to promote full and equal business opportunities for all businesses in state contracting in accordance with the goals specified in the State of Texas Disparity Study. It is the policy of the State of Texas and the Department of Assistive and Rehabilitative Services to encourage the use of historically underutilized businesses (HUBs) and to implement this policy through race, ethnic, and gender-neutral means.

§101.553.Applicability.

This subchapter applies to all contracts and purchase orders established under the requirements of Government Code Chapter 2155. It also applies to all bids, proposals, offers, or other applicable expressions of interest over $100,000 as defined in Texas Administrative Code, Title 1, Part 5, Chapter 111, Subchapter B, §111.14 and Government Code Chapter 2161 Subchapter F relating to HUB subcontracting responsibilities.

§101.555.Definitions.

In this subchapter, the following definitions apply.

(1) Economically Disadvantaged Person--A person who is economically disadvantaged because of the person's identification as a member of a certain group, as defined in 1 TAC §111.12 (relating to Definitions), and who has suffered the effects of discriminatory practices or other similar insidious circumstances over which the person has no control.

(2) Good Faith Effort (GFE)--Evidence of certain criteria used by prime contractors to promote inclusion of HUBs in contracts with an expected value of $100,000 or more as defined in 1 TAC §111.13 and §111.14 (relating to Annual Procurement Utilization Goals and Subcontracts). When applied to agency GFE, the state auditor shall consider whether the agency has adopted rules under §2161.003, Government Code; has used the Texas Building and Procurement Commission (TBPC) directory and other resources to identify HUBs that are able to contract with the agency; made good faith, timely efforts to contact identified HUBs regarding contracting opportunities; and conducted its procurement program in accordance with the good faith methodology set out in TBPC rules.

(3) Historically Underutilized Business (HUB)--A business entity that is a corporation, sole proprietorship, partnership, joint venture, etc. owned and operated by an economically disadvantaged person or persons as defined in 1 TAC §111.12 (relating to Definitions) with its principal place of business in Texas.

(4) HUB Subcontracting Plan (HSP)--a plan required to be submitted with bids, proposals, offers, or other applicable expressions of interest that determine or describe HUB subcontracting opportunities probable under the contract as defined in 1 TAC §111.13 and §111.14 (relating to Annual Procurement Utilization Goals and Subcontracts).

§101.557.Adoption of Rules.

In accordance with Government Code §2161.003, the Department of Assistive and Rehabilitative Services adopts the rules of the Texas Building and Procurement Commission at 1 TAC Chapter 111, Subchapter B (relating to Historically Underutilized Business Program), which rules were promulgated by the General Services Commission pursuant to Government Code, §2161.002.

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 April 30, 2007.

TRD-200701630

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Subchapter D. COUNCILS AND COMMITTEES

40 TAC §§101.601, 101.603, 101.605

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

§101.601.Rehabilitation Council of Texas.

(a) Legal basis. The Rehabilitation Council of Texas is created pursuant to the Rehabilitation Act of 1973, as amended, 29 United States Code §725, and the Human Resource Code, §111.016. The federal law requires that the Department establish the Rehabilitation Council of Texas in order to receive federal financial assistance. Failure to establish the Council would prohibit federal financial assistance. In accordance with Human Resources Code, §111.0161, the Council reports to and advises the Executive Commissioner or designee on the committee's activities and the results of the committee's work. For the purpose of performing its advisory functions, the Council works with the DARS Commissioner, the DARS commission staff, and the Executive Commissioner or designee.

(b) Purpose. The Rehabilitation Council of Texas advises the Department of Assistive and Rehabilitative Services, Division for Rehabilitation Services and Division for Blind Services regarding the performance of the responsibilities of the Divisions in the provision of vocational rehabilitation services for individuals with disabilities.

(1) review, analyze, and advise the Divisions regarding the performance of responsibilities, particularly responsibilities relating to:

(A) eligibility (including order of selection);

(B) the extent, scope, and effectiveness of services provided; and

(C) functions performed by state agencies that affect or that potentially affect the ability of individuals with disabilities in achieving rehabilitation goals and objectives;

(2) advise the Divisions and at its discretion, assist in the preparation of applications, the state plan, the strategic plan, and amendments to the plans, reports, needs assessments, and evaluations required;

(3) to the extent feasible, conduct a review and analysis of the effectiveness of, and consumer satisfaction with:

(A) the functions performed by state agencies and other public and private entities responsible for performing functions for individuals with disabilities; and

(B) vocational rehabilitation services:

(i) provided, or paid for from funds made available, under 29 United States Code Annotated, §725, or through other public or private sources; and

(ii) provided state agencies and other public and private entities responsible for providing vocational rehabilitation services to individuals with disabilities;

(4) coordinate with other councils within the state, including the State Independent Living Council established under 29 United States Code §796d, the advisory panel established under 20 United States Code §1431(a)(12), the State Planning Council described in 42 United States Code §6024, and the State Mental Health Planning Council established under 42 United States Code §300x-4(e);

(5) advise the Divisions and provide for coordination and the establishment of working relationships between the Divisions and the State Independent Living Council and centers for independent living within the state; and

(6) perform such other functions consistent with the Rehabilitation Act of 1973, as amended, as the council determines to be appropriate that are comparable to other functions performed by the council.

(d) Reports. The council shall:

(1) prepare and submit an annual report to the governor or appropriate state entity and the commissioner on the status of vocational rehabilitation programs operated within the state, and make the report available to the public; and

(2) submit to the commissioner of the Rehabilitation Services Administration, United States Department of Education such periodic reports as the commissioner may reasonably request, and keep such records as the commissioner finds necessary to verify such reports.

(e) Funding. The council is funded primarily by federal funds and its existence is required in order to receive and expend federal funds.

(f) Duration of council. The council will be abolished on December 31, 2009.

§101.603.State Independent Living Council.

(a) Legal basis. The State Independent Living Council is created pursuant to the Rehabilitation Act of 1973, as amended, 29 United States Code §796d. Failure to establish the council would prohibit federal financial assistance.

(b) Purpose. The Rehabilitation Act of 1973, as amended, 29 United States Code §796d, requires that each state shall establish a State Independent Living Council (SILC).

(1) in conjunction with the Department of Assistive and Rehabilitative Services, jointly develop and submit the State Plan for Independent Living services as required by federal law;

(2) monitor, review, and evaluate the implementation of the State Plan for Independent Living;

(3) coordinate activities with the Rehabilitation Council of Texas set out in §101.601 of this title (relating to the Rehabilitation Council of Texas) and other councils that address the needs of specific disability populations and issues under other federal law;

(4) ensure that all regularly scheduled meetings of the council are open to the public and sufficient advance notice is provided;

(5) submit to the federal government such periodic reports as the federal government may reasonably request, and keep such records as the federal government finds necessary to verify such reports; and

(6) report to the Department of Assistive and Rehabilitative Services Council at least annually on the council's actions and the results of the council's work.

(d) Funding. The council is funded primarily by federal funds and its existence is required in order to receive and expend federal funds.

(e) Duration of council. The council will be abolished on December 31, 2009.

§101.605.Early Childhood Intervention Advisory Committee.

(a) The purpose of these sections is to establish the size, composition, terms of office, duties, and procedures of an advisory committee to assist the Department of Assistive and Rehabilitative Services, Division for Early Childhood Intervention Services in its duties. The sections implement the provisions in:

(1) the Human Resources Code, §73.004, concerning an advisory committee to assist the Department; and

(2) the federal regulations covering an advisory committee to the Department in 34 Code of Federal Regulations, Part 303, Subpart G.

(b) Size. The advisory committee shall consist of 24 members which the governor shall appoint.

(1) Official members must include:

(A) at least seven parents, including minority parents of infants or toddlers with developmental disabilities or delays or children with developmental disabilities or delays aged 12 or younger, with knowledge of, or experience with, programs for infants and toddlers with developmental disabilities. At least one such member shall be a parent of an infant or toddler with a developmental disability or delay or a child with a developmental disability or delay aged six or younger, and no parent may be an employee of an early childhood intervention funded program;

(B) at least five public or private providers of early childhood intervention services, one of whom is a preschool specialist and a provider of birth to three services in an educational service center;

(D) at least one person involved in personnel preparation;

(E) at least one representative from each of the following agencies and public program: the Health and Human Services Commission, the Department of Aging and Disability Services, the Department of State Health Services, the Department of Family and Protective Services; the Texas Education Agency; the Texas Department of Insurance; the Office of Coordination for Education of Homeless Children and Youth; and Head Start. The representative must have sufficient authority to engage in policy planning and implementation on behalf of his or her agency. The Texas Education Agency representative must be responsible for preschool services to children with disabilities;

(F) a physician, preferably a pediatrician who deals with children with developmental disabilities; and

(G) a professional advocate of the rights of young children with developmental disabilities.

(2) Ex officio members may be appointed by the Department to perform specific, time-limited tasks as needed. The Department determines voting status of ex officio members.

(d) Terms of office. Official advisory committee members shall serve staggered six-year terms of office, with the terms of eight members expiring February 1 of each odd number year.

(e) Chairperson. The advisory committee shall appoint the chairperson of the advisory committee.

(f) The advisory committee shall:

(1) advise and assist the Department of Assistive and Rehabilitative Services, Division for Early Childhood Intervention Services in the development and implementation of the policies that constitute the statewide ECI system;

(2) advise and assist the state educational agency regarding appropriate services and the transition of toddlers with developmental disabilities to services provided under IDEA, Part B, 20 U.S.C. Sec. 1411 - 1419 to the extent such services are appropriate;

(3) assist the Department in achieving the full participation, coordination, and cooperation of all appropriate public agencies in the state; and

(4) assist the Department in the effective implementation of the statewide system, by establishing a process that includes:

(A) seeking information from service providers, case managers (service coordinators), parents, and others about any federal, state, or local policies that impede timely service delivery; and

(B) taking steps to ensure that any policy problems identified in subparagraph (A) of this paragraph are resolved; and

(5) to the extent appropriate, assist the Department in the resolution of disputes.

(g) The advisory committee shall advise and assist the Department in the:

(1) identification of sources of fiscal and other support for services for early intervention programs under this chapter;

(2) assignment of financial responsibility to the appropriate agency; and

(3) promotion of the interagency agreements.

(h) The advisory committee shall advise and assist the Department in the preparation of applications under this chapter, and amendments to those applications.

(i) The advisory committee shall:

(1) with assistance from the Department prepare an annual report to the governor and to the secretary of the United States Department of Education (secretary) on the status of early intervention programs operated within the state for children eligible under this chapter and their families; and

(2) submit the report to the secretary by a date that the secretary establishes.

(j) Each annual report must contain the information required by the secretary for the year for which the report is made.

(k) The committee may advise and assist the Department and the Texas Education Agency regarding the provision of appropriate services for children aged birth to five, inclusive.

(l) Notice, frequency, and location of meetings.

(1) All advisory committee meetings are subject to the Government Code, Chapter 551. Written notice of the date, time, place, and subject of each meeting shall be posted with the Texas Register Division, secretary of state's office, as required by the Code.

(2) The Assistant Commissioner shall send a copy of the notice of each meeting to each advisory committee member at least one week prior to the meeting.

(3) Meetings will be held at least quarterly and generally will be held in Austin.

(m) Robert's Rules of Order. All meetings will be conducted according to Robert's Rules of Order, except that:

(1) the chairperson may vote on any action as any other advisory committee member, and in case of a tie vote the chairperson's vote will be the tiebreaker; and

(2) all actions taken by the advisory committee must be approved by a majority vote of the members present at the meeting.

(n) Public participation. All requests from the public to participate in advisory committee meetings must be submitted to the chairperson.

(o) Absence of chairperson. If the chairperson will be absent from a meeting, he/she may designate another member to act as chairperson and to have all powers and responsibilities of the chairperson for that meeting.

(p) Compensatory per diem. Official and ex officio members who attend meetings may be reimbursed for expenses for meals, lodging, and transportation as established in the current Texas State Appropriations Act, Article IX. The official and ex officio members who are parents are entitled to reimbursement for child care. All official and ex officio members are entitled to reimbursement for attendant care.

(q) Interpreters. Interpreters for persons who are deaf and other necessary services must be provided at the advisory committee meeting, both for advisory committee members and participants.

(r) Conflict of interest. No advisory committee members may vote on any subject at a meeting which would provide direct financial benefit to that member or otherwise give the appearance of a conflict of interest.

(s) Absences from meetings. The Department of Assistive and Rehabilitative Services may recommend to the governor the removal of any advisory committee member who is absent from more than half of the regularly scheduled meetings of the advisory committee that the member is eligible to attend during each calendar year or is absent from more than two consecutive regularly scheduled meetings that the member is eligible to attend.

(t) Duration. The committee will be abolished on December 31, 2009.

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 April 30, 2007.

TRD-200701631

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Subchapter F. DURABLE MEDICAL EQUIPMENT AND ASSISTIVE TECHNOLOGY LISTING

2. DIVISION FOR BLIND SERVICES APPEALS AND HEARING PROCEDURES

40 TAC §§101.1001, 101.1003, 101.1005, 101.1007, 101.1009, 101.1011

The Texas Health and Human Services Commission proposes amendments to the rules of the Department of Assistive and Rehabilitative Services in Title 40, Part 2, Chapter 101, relating to Administrative Rules and Procedures, by proposing new Subchapter F, Durable Medical Equipment and Assistive Technology Listing, §§101.1001, 101.1003, 101.1005, 101.1007, 101.1009 and 101.1011.

This change is being proposed to update administrative and program rules from the former Texas Rehabilitation Commission, which was consolidated into the Department of Assistive and Rehabilitative Services (DARS) in 2004, by setting forth a single set of rules applicable to the technology listing activities of DARS as provided by House Bill 2292, 78th Legislature, Regular Session. Rules relating to technology listing activities were previously contained in Chapter 107, Subchapter G of this title, relating to Rehabilitation Services. The repeal of those rules is contemporaneously proposed elsewhere in this issue of the Texas Register .

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

§101.1001.Legal Basis and Purpose.

The Durable Medical Equipment and Assistive Technology Listing is created pursuant to Title 7, Human Resources Code, Chapter 116. Its purpose is to facilitate the reuse of durable medical equipment and assistive technology.

§101.1003.Definition.

In this subchapter, "durable medical equipment and assistive technology" means devices which are not consumable, not custom fitted making them unusable by others, and which assist persons with disabilities in performing functions or activities that they are incapable of or have difficulty in performing because of their disabilities, such as: moving, walking, standing, speaking, breathing, hearing, seeing, learning, working, driving or riding in motor vehicles, sleeping, reaching, grasping, or caring for themselves.

§101.1005.Listing Items for Donation.

(a) The department maintains a toll-free telephone number which may be used by individuals and organizations to list with the department items of durable medical equipment and assistive technology that are available for donation. The listing is made available to the public through the Internet. Donors wishing to list items using the department's toll-free number will provide their name (optional), and telephone number, identification of the item to be donated, and city or county where the item is located (mandatory).

(b) Before accepting a listing, the department must obtain the consent of the donor to make available to the public the listing of personal information provided through the Internet. If the donor is an individual, the donor's prior written consent for release of name and/or telephone number, to the department must occur.

(c) Any items owned by the state and listed with the department, if donated, must be donated to a nonprofit organization licensed under the Health and Safety Code, Chapter 432, for distribution to indigent individuals. Before the department may accept a listing for an item owned by the state, the donor agency must agree that while listed, the item will be donated only to a nonprofit organization licensed under the Health and Safety Code, Chapter 432, for distribution to indigent individuals.

(d) Individuals and organizations wishing to cancel a listing should contact the department using the toll-free number, or in writing.

§101.1007.Stickers for Retailers.

The department has designed a sticker that contains an informative statement about the durable medical equipment and assistive technology listing, and the toll-free telephone number, which shall be affixed by retailers to items of durable medical equipment or assistive technology as provided by Title 7, Human Resources Code, Chapter 116. The department provides the stickers at no charge to each retailer of durable medical equipment or assistive technology in the state who requests stickers or has been identified by the 800 operator for request. To obtain additional stickers, contact the department as the department is the only source to distribute.

§101.1009.Referral of Individuals.

When individuals contact the department with items of durable medical equipment and assistive technology available for donation, they will be referred to organizations licensed under the Health and Safety Code, Chapter 432. Licensed medical device salvage brokers and establishments that wish to appear on the department's referral list should submit to the department a written request and a copy of their current license issued by the Department of State Health Services.

§101.1011.Local Organizations.

It is the policy of the department to encourage the establishment of local organizations to facilitate the reuse of durable medical equipment and assistive technology. Upon request, the department will provide information to local organizations about the license required under the Health and Safety Code, Chapter 432, to distribute salvaged merchandise.

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 April 30, 2007.

TRD-200701635

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Chapter 105. GENERAL CONTRACTING RULES

Subchapter F. CLAIMS FOR BREACH OF CONTRACT

40 TAC §§105.1403, 105.1405, 105.1407, 105.1409, 105.1411, 105.1413, 105.1415, 105.1417, 105.1419, 105.1421, 105.1423, 105.1425

The Texas Health and Human Services Commission proposes amendments to the rules of the Department of Assistive and Rehabilitative Services in Title 40, Part 2, Chapter 105, Subchapter F, relating to Claims for Breach of Contract. This proposal adds new §§105.1403, 105.1405, 105.1407, 105.1409, 105.1411, 105.1413, 105.1415, 105.1417, 105.1419, 105.1421, 105.1423, and 105.1425.

The new rules are being proposed to replace rules currently in Chapter 101, Subchapter F, Division 4 of this title, relating to Contract Dispute Resolution. The repeal of those rules is contemporaneously proposed elsewhere in this issue of the Texas Register .

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

§105.1403.Definitions.

These definitions supplement definitions in Government Code, Chapter 2260. The following words and terms, when used in this subchapter, shall have the following meaning, unless the context clearly indicates otherwise:

(1) Claim--A demand for damages by the contractor based upon the Department of Assistive and Rehabilitative Services (DARS) alleged breach of the contract.

(2) Counterclaim--A demand by DARS based upon the contractor's claim.

(3) Day--A calendar day. If an action is required to occur on a day falling on a Saturday, Sunday, or state or federal holiday, the next working day that is not one of these days should be counted as the required day for purpose of the action.

(4) Event--An act or omission or a series of acts or omissions giving rise to a claim.

(5) Mediation--A consensual process in which an impartial third party, the mediator, facilitates communication between the parties to promote reconciliation, settlement, or understanding among them.

(6) Negotiation--A consensual bargaining process in which the parties attempt to resolve a claim and counterclaim.

(7) Parties--DARS and contractor that have entered into a contract in connection with which a claim of breach of contract has been filed under this subchapter.

§105.1405.Notice of Claim.

(a) A contractor asserting a claim of breach of contract under Government Code, Chapter 2260, must file notice of the claim in accordance with requirements of Government Code, Chapter 2260 and this section.

(b) The notice of claim must:

(1) be in writing and signed by the contractor or the contractor's authorized representative;

(2) be delivered by hand, certified mail return receipt requested, or other verifiable delivery service, to the Department of Assistive and Rehabilitative Services (DARS) Commissioner or designee; and

(3) state in detail:

(A) the nature of the alleged breach of contract, including the date of the event that the contractor asserts as the basis of the claim and each contractual provision allegedly breached;

(B) a description of damages that resulted from the alleged breach, including the amount and method used to calculate those damages; and

(C) the legal theory of recovery, i.e., breach of contract, including the causal relationship between the alleged breach and the damages claimed.

(c) The contractor may submit supporting documentation or other tangible evidence to facilitate DARS' evaluation of the contractor's claim.

§105.1407.Negotiation Timetable.

(a) The parties will negotiate in accordance with the timeframes established in Government Code, Chapter 2260. No party is obligated to settle with the other party as a result of the negotiation.

(b) If the parties agree to extend the time for negotiations, they will enter into a written agreement that is signed by representatives of the parties with authority to bind each respective party. The agreement will provide for the specific date by which the negotiations will be completed. The parties may enter into a series of written extension agreements that comply with the requirements of this section.

(c) Nothing in this section is intended to prevent the parties from agreeing to commence negotiations earlier than the deadlines established in Government Code, Chapter 2260 or from continuing or resuming negotiations after the contractor requests a contested case hearing before the State Office of Administrative Hearings (SOAH).

§105.1409.Conduct of Negotiations.

A negotiation under this subchapter may be conducted by any method, technique, or procedure agreed upon by the parties, including, without limitation, negotiation in person, by telephone, by correspondence, by video conference, or by any other method that permits the parties to identify their respective positions, discuss their respective differences, confer with their respective advisers, exchange offers of settlement, and settle.

§105.1411.Negotiation Settlement Approval Procedures.

The parties' settlement approval procedures must be disclosed prior to, or at the beginning of negotiations. To the extent possible, the parties must select negotiators who are knowledgeable about the subject matter of the dispute, who are in a position to reach agreement, and who can credibly recommend approval of an agreement.

§105.1413.Settlement Agreement After Negotiation.

(a) A settlement agreement may resolve an entire claim or any portion of a claim.

(b) A settlement agreement must be in writing and signed by representatives of the contractor and the Department of Assistive and Rehabilitative Services who have authority to bind each respective party.

§105.1415.Costs of Negotiation and Mediation.

(a) Unless the parties agree otherwise, each party will be responsible for its own costs incurred in connection with a negotiation and mediation, including, without limitation, the costs of attorney's fees, consultant's fees, expert's fees, and documents requested by each party.

(b) The costs of the mediation process itself will be divided equally between the parties.

§105.1417.Agreement to Mediate.

The parties may agree to use mediation as an option to resolve a breach of contract claim if both parties agree.

§105.1419.Conduct of Mediation.

(a) The parties' settlement approval procedures must be disclosed by the parties prior to the mediation.

(b) The mediator must be acceptable to both parties.

(c) The mediation is subject to the provisions of the Governmental Dispute Resolution Act, Government Code, Chapter 2009.

(d) To the extent possible, the parties must select representatives who are knowledgeable about the subject matter of the dispute that resulted in the claim for breach of contract, who are in a position to reach agreement, and who can credibly recommend approval of an agreement.

§105.1421.Qualifications and Immunity of Mediator.

(a) The mediator must possess the qualifications required for an impartial third party under Civil Practice and Remedies Code, Chapter 154, be subject to the standards and duties prescribed by Civil Practice and Remedies Code, Chapter 154, and will have the qualified immunity of impartial third parties prescribed by Civil Practice and Remedies Code, Chapter 154, if applicable.

(b) The parties should decide whether, and to what extent, knowledge of the subject matter and experience in mediation would be advisable for the mediator.

§105.1423.Mediation Settlement Agreement Procedures.

(a) An initial agreement must describe any procedures required to be followed by the parties in connection with final approval of the agreement.

(b) Any initial or final settlement agreement reached during or as a result of mediation that resolves an entire claim or any designated and severable portion of a claim must be in writing and signed by representatives of both parties who have authority to bind each respective party.

(c) If a settlement agreement does not resolve all issues raised by the claim and counterclaim, the agreement must identify the issues that are not resolved.

§105.1425.Confidentiality of Mediation and Final Settlement Agreement.

(a) A mediation conducted under this section is confidential in accordance with Government Code, Chapter 2009.

(b) The confidentiality of a final settlement agreement to which the Department of Assistive and Rehabilitative Services is signatory that is reached as a result of the mediation is governed by Government Code, Chapter 552.

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 April 30, 2007.

TRD-200701636

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Chapter 106. BLIND SERVICES

Subchapter A. APPEALS AND HEARING PROCEDURES

1. VOCATIONAL REHABILITATION AND INDEPENDENT LIVING PROGRAMS

40 TAC §§106.19, 106.23, 106.25, 106.27, 106.29, 106.30, 106.33, 106.34, 106.37, 106.39, 106.41, 106.43, 106.45, 106.47, 106.49, 106.51, 106.53, 106.55, 106.57, 106.59, 106.61, 106.63, 106.65, 106.67, 106.69, 106.71, 106.73, 106.75, 106.77, 106.79, 106.81, 106.83, 106.85, 106.87, 106.89, 106.91

The Texas Health and Human Services Commission proposes amendments to the rules of the Department of Assistive and Rehabilitative Services in Title 40, Part 2, Chapter 106, concerning Blind Services. This proposal repeals Subchapter A, Division 1, §§106.19, 106.23, 106.25, 106.27, 106.29, 106.30, 106.33, 106.34, 106.37, 106.39, 106.41, 106.43, 106.45, 106.47, 106.49, 106.51, 106.53, 106.55, 106.57, 106.59, 106.61, 106.63, 106.65, 106.67, 106.69, 106.71, 106.73, 106.75, 106.77, 106.79, 106.81, 106.83, 106.85, 106.87, 106.89 and 106.91, concerning Appeals and Hearing Procedures for Vocational Rehabilitation and Independent Living Programs.

Elsewhere in this issue of the Texas Register , the Department of Assistive and Rehabilitative Services contemporaneously proposes rules in Chapter 101, in a new Subchapter E, Appeals and Hearing Procedures for Vocational Rehabilitation and Independent Living Programs.

The repeal and new rules are being proposed to clarify and update program rules from the former Texas Commission for the Blind, which was consolidated into the Department of Assistive and Rehabilitative Services in 2004, into agency-wide appeals and hearings rules applicable to all vocational rehabilitation and independent living programs now administered by Department of Assistive and Rehabilitative Services, as provided by House Bill 2292, 78th Legislature, Regular Session.

Bill Wheeler, Chief Financial Officer, Department of Assistive and Rehabilitative Services, estimates that for each year of the first five years that the repeal 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 repeal will be in effect, the public benefit anticipated as a result of repealing the rules 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 repeal as proposed. 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 repeal will not affect a local economy.

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

§106.19.Purpose and Scope.

§106.23.Legal Authority and Scope.

§106.25.Definitions.

§106.27.Filing a Request for Review.

§106.29.Time for Hearing.

§106.30.Computation of Time.

§106.33.Filings.

§106.34.Assignment of Impartial Hearing Officer.

§106.37.Powers and Duties of the Impartial Hearing Officer.

§106.39.Substitution of Impartial Hearing Officer.

§106.41.Reasonable Accommodations.

§106.43.Appearance of Parties at Hearings; Representation.

§106.45.Failure to Attend Hearing and Default.

§106.47.Representation and Attorney Fees.

§106.49.Witness Fees.

§106.51.Notices.

§106.53.Prehearing Conferences.

§106.55.Dismissal Without Hearing.

§106.57.Discovery.

§106.59.Motions.

§106.61.Orders.

§106.63.Settlement Conferences.

§106.65.Stipulations.

§106.67.Conduct of Hearing.

§106.69.Order of Proceedings.

§106.71.Exhibits.

§106.73.Transcription of Proceedings.

§106.75.Documentary Evidence and Official Notice.

§106.77.Prepared Testimony.

§106.79.Offer of Proof.

§106.81.Pleadings.

§106.83.Continuance.

§106.85.Impartial Hearing Officer Decision.

§106.87.Implementation of Final Decision.

§106.89.Appeal of Final Decision.

§106.91.Mediation Procedures.

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 April 30, 2007.

TRD-200701637

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Chapter 106. DIVISION FOR BLIND SERVICES

The Texas Health and Human Services Commission proposes amendments to the rules of the Department of Assistive and Rehabilitative Services, Title 40, Part 2, Chapter 106, concerning Blind Services. This proposal repeals Chapter 106, Subchapter A, Division 2, §§106.121, 106.123, 106.125, 106.127, 106.129, 106.131, 106.133, 106.135 and 106.137; Subchapter B, Division 1, §106.305; Subchapter B, Division 2, §§106.321, 106.323, 106.325, 106.327, 106.329, 106.331, 106.333, 106.335, 106.337, 106.339, 106.341, 106.343 and 106.345; Subchapter D, Division 1, §106.857; Subchapter I, Division 3, §106.1459 and Subchapter N, §§106.1901, 106.1903, 106.1905, 106.1907, 106.1909, 106.1911, 106.1913, 106.1915, 106.1917, 106.1919, 106.1921 and 106.1923. This proposal also amends Subchapter B, Criss Cole Rehabilitation Center, Division 1, §106.302 and §106.303; Subchapter C, Vocational Rehabilitation Program, Division 1, §§106.503, 106.505, 106.507, and 106.509; Subchapter C, Division 2, §§106.523, 106.525, 106.527, 106.529, 106.531, 106.533 and 106.535; Subchapter C, Division 3, §§106.551, 106.553, 106.557, 106.559, 106.561,106.564, 106.566, 106.574, 106.578, 106.580 and 106.582; Subchapter C, Division 4, §106.605; Subchapter C, Division 5, §§106.621, 106.623, 106.625, 106.627, 106.631 and 106.633; Subchapter C, Division 6, §106.651; Subchapter C, Division 7, §106.661; Subchapter C, Division 8, §§106.671, 106.673 and 106.675; Subchapter D, Independent Living Program, Division 1, §106.851 and §106.855; Subchapter D, Division 2, §§106.873, 106.875, 106.877, 106.879 and 106.881; Subchapter D, Division 3, §106.901 and §106.903; Subchapter D, Division 5, §§106.931, 106.933, 106.935, 106.937, 106.939 and 106.941; Subchapter D, Division 6, §106.965; Subchapter F, Blindness Education, Screening and Treatment Program, §§106.1101, 106.1103, 106.1105 and 106.1107; Subchapter G, Business Enterprises of Texas, §§106.1201, 106.1203, 106.1205, 106.1207, 106.1211, 106.1213, 106.1215, 106.1217, 106.1219, 106.1221, 106.1223, 106.1225, 106.1227, 106.1229, 106.1231 and 106.1233; Subchapter I, Blind Children's Vocational Discovery and Development Program, Division 1, §§106.1401, 106.1403, 106.1405, 106.1407, 106.1409, 106.1411 and 106.1413; Subchapter I, Division 2, §§106.1421, 106.1423, 106.1425, 106.1427, 106.1429 and 106.1433; Subchapter I, Division 3, §§106.1445, 106.1447, 106.1449, 106.1451, 106.1453, 106.1455, 106.1457, 106.1461 and 106.1463; Subchapter I, Division 5, §§106.1485, 106.1487, and 106.1489; Subchapter I, Division 6, §106.1501 and Subchapter M, Donations, §§106.1801, 106.1803, 106.1805, 106.1807, 106.1809, 106.1811, and 106.1813.

This proposal also changes the title of Chapter 106 from "Blind Services" to "Division for Blind Services".

The changes are being proposed to clarify and update program rules from the former Texas Commission for the Blind, which was consolidated into the Department of Assistive and Rehabilitative Services in 2004, into rule applicable to programs now administered by the Division for Blind Services, Department of Assistive and Rehabilitative Services, as provided by House Bill 2292, 78th Legislature, Regular Session.

Mr. Wheeler also estimates that for each year of the first five years the rules will be in effect, the public benefit anticipated as a result of adopting the proposed changes 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. 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.

Subchapter A. APPEALS AND HEARING PROCEDURES

2. BLIND CHILDREN'S VOCATIONAL DISCOVERY AND DEVELOPMENT PROGRAM

40 TAC §§106.121, 106.123, 106.125, 106.127, 106.129, 106.131, 106.133, 106.135, 106.137

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

§106.121.Statutory Authority and Scope.

§106.123.Requests for Informal Review.

§106.125.Informal Review Procedures.

§106.127.Informal Review Findings.

§106.129.Withdrawal or Cancellation of Request for Informal Review.

§106.131.Request for Formal Hearing.

§106.133.Formal Hearing Procedures.

§106.135.Review of Proposal for Decision.

§106.137.Appeal of Final Decision.

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 April 30, 2007.

TRD-200701638

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Subchapter B. CRISS COLE REHABILITATION CENTER

1. GENERAL RULES

40 TAC §106.305

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

§106.305.CCRC Consumer Handbook.

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 April 30, 2007.

TRD-200701639

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

2. INVESTIGATIONS OF ABUSE, NEGLECT, AND EXPLOITATION

40 TAC §§106.321, 106.323, 106.325, 106.327, 106.329, 106.331, 106.333, 106.335, 106.337, 106.339, 106.341, 106.343, 106.345

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

§106.321.Purpose.

§106.323.Definitions.

§106.325.Situations Investigated.

§106.327.Reports of Allegations.

§106.329.Referrals to Other Agencies.

§106.331.Priority of Investigations.

§106.333.Timing of Investigations.

§106.335.Content of Investigation.

§106.337.Classification of Findings.

§106.339.Investigation Report.

§106.341.Notification of Findings.

§106.343.Complaints.

§106.345.Confidentiality of Investigative Process and Report.

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 April 30, 2007.

TRD-200701640

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Subchapter D. INDEPENDENT LIVING PROGRAM

1. GENERAL INFORMATION

40 TAC §106.857

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

§106.857.Appeals of Determinations.

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 April 30, 2007.

TRD-200701641

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Subchapter I. BLIND CHILDREN'S VOCATIONAL DISCOVERY AND DEVELOPMENT PROGRAM

3. SERVICES

40 TAC §106.1459

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

§106.1459.Vision Screening Services.

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

Filed with the Office of the Secretary of State on April 30, 2007.

TRD-200701642

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Subchapter N. ENDOWMENT LOAN FUND

40 TAC §§106.1901, 106.1903, 106.1905, 106.1907, 106.1909, 106.1911, 106.1913, 106.1915, 106.1917, 106.1919, 106.1921, 106.1923

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

§106.1901.Purpose.

§106.1903.Availability of Funds.

§106.1905.Eligibility.

§106.1907.Restrictions.

§106.1909.Interest.

§106.1911.Application.

§106.1913.Payments.

§106.1915.Prepayment.

§106.1917.Equipment Maintenance.

§106.1919.Insurance.

§106.1921.Insurance Renewals.

§106.1923.Default and Repossession.

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 April 30, 2007.

TRD-200701643

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Subchapter B. CRISS COLE REHABILITATION CENTER

1. GENERAL RULES

40 TAC §106.302, §106.303

The 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.

§106.302.Services.

Criss Cole Rehabilitation Center (CCRC) is a comprehensive rehabilitation facility operated by the Division for Blind Services [ ~~Texas Commission for the Blind~~ ] in Austin, Texas. CCRC provides services such as functional evaluations, individualized and small group training in communication, home and personal management, orientation and mobility, braille, low vision, health management, nutrition, physical conditioning, social skills, technology awareness, and career guidance. Special summer training is available for consumers in high school who are preparing for higher education. This list is not to be interpreted as comprehensive; ancillary services may also be available.

§106.303.Referrals.

(a) A person residing in Texas must be referred to CCRC by one of the Division's [ ~~Commission's~~ ] vocational rehabilitation counselors or independent living caseworkers. Individuals residing outside of Texas who are receiving rehabilitation services from an agency in another state shall be considered for admittance and training on a space-available basis, subject to an agreement between the Division [ ~~Commission~~ ] and the state agency on payment of cost of services provided to the individual.

(b) All consumers who are referred to CCRC must be blind. Priority will be for those consumers who are [ ~~Priority for admission shall be given to consumers who are blind and~~ ] receiving services from the Division's [ ~~Commission's~~ ] Vocational Rehabilitation Program.

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

Filed with the Office of the Secretary of State on April 30, 2007.

TRD-200701644

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Subchapter C. VOCATIONAL REHABILITATION PROGRAM

1. GENERAL INFORMATION

40 TAC §§106.503, 106.505, 106.507, 106.509

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

§106.503.Program and Chapter Purposes.

The Vocational Rehabilitation Program is a joint state-federal funded program administered by the Department of Assistive and Rehabilitative Services, Division for Blind Services (Division) [ ~~Texas Commission for the Blind (commission)~~ ] to assess, plan, develop, and provide vocational rehabilitation services for eligible persons with visual impairments, consistent with their strengths, resources, priorities, concerns, abilities, and capabilities, so that these persons may prepare for and engage in gainful employment.

§106.505.Conformity to Federal Requirements.

As required in the Human Resources Code, §91.021(d), the rules in this chapter comply with provisions of the following.

(1) The Rehabilitation Act of 1973 as amended (29 United States Code §§701 et seq).

(2) Implementing federal regulations (34 Code of Federal Regulations, Chapter 4, Part 361).

(3) The Division's [ ~~commission's~~ ] state plan submitted to and approved by the federal government, which is effective in all political subdivisions of the state.

§106.507.Public Access to Forms and Documents.

(a) All forms and documents used in the administration of the Vocational Rehabilitation Program are available for viewing at any Division [ ~~commission~~ ] office, including the central office at 4800 North Lamar, Austin, Texas, between 8:00 a.m. and 5:00 p.m. on work days.

(b) Requests for copies are subject to the Division's [ ~~commission~~ ] rules regarding charges for public records.

§106.509.Definitions.

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

(1) Applicant--An individual who has submitted an application for vocational rehabilitation services in accordance with §106.521 [ ~~§163.10~~ ] of this title (relating to Application).

(2) Assistive technology device--Any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve the functional capabilities of a consumer.

(3) Assistive technology service--Any service that directly assists a consumer in the selection, acquisition, or use of an assistive technology device.

(4) Blind (person who is)--A person whose visual acuity with best correction is 20/200 or less in the better eye, or a person with a limitation in the field of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees, which means a visual field of no greater than 20 degrees in the better eye.

(5) Comparable services and benefits--Services and benefits that are provided or paid for, in whole or in part, by other federal, state, or local public agencies, by health insurance, or by employee benefits; available to the consumer at the time needed to achieve the intermediate rehabilitation objectives in the individual's individualized plan for employment (IPE); and commensurate to the services that the consumer would otherwise receive from the Division [ ~~commission~~ ].

(6) Competitive employment--Work that is performed on a full-time or part-time basis in an integrated setting and for which an individual is compensated at or above the minimum wage, but not less than the customary wage and level of benefits paid by the employer for the same or similar work performed by individuals who are not disabled.

(7) Consumer--An individual with a disability determined eligible for vocational rehabilitation services under the provisions of §106.523 [ ~~§163.11~~ ] of this title (relating to Eligibility).

(8) Day--Unless specifically denoted otherwise, refers to one calendar day.

(9) Employment outcome--A person's entering or retaining full-time or, if appropriate, part-time competitive employment in the integrated labor market to the greatest extent practicable; supported employment; or any other type of employment that is consistent with the consumer's strengths, resources, priorities, concerns, abilities, capabilities, interests and informed choice.

(10) Extended employment--Work in a non-integrated or sheltered setting for a public or private nonprofit agency or organization that provides compensation in accordance with the Fair Labor Standards Act and any needed support services to an individual with a disability to enable the individual to continue to train or otherwise prepare for competitive employment, unless the individual through informed choice chooses to remain in extended employment.

(11) Extended services--As used in the definition of "supported employment," the ongoing support services and other appropriate services that are needed to support and maintain an individual with a most severe disability in supported employment and that are provided by a State agency, a private nonprofit organization, employer, or any other appropriate resource, from funds other than funds received under 34 CFR Part 361, 34 CFR Part 363, 34 CFR Part 376, or 34 CFR Part 380, after an individual with a most severe disability has made the transition from support provided by the Division [ ~~commission~~ ].

(12) Extreme medical risk--A probability of substantially increasing functional impairment or death if medical services, including mental health services, are not provided expeditiously.

(13) Integrated setting--

(A) With respect to the provision of services, a setting typically found in the community in which applicants or eligible individuals interact with nondisabled individuals other than nondisabled individuals who are providing services to those applicants or eligible individuals;

(B) With respect to an employment outcome, a setting typically found in the community in which applicants or eligible individuals interact with nondisabled individuals, other than nondisabled individuals who are providing services to those applicants or eligible individuals, to the same extent that nondisabled individuals in comparable positions interact with other persons.

(14) Individual with a disability--An individual with a visual impairment that constitutes or results in a substantial impediment to employment, and who can benefit in terms of an employment outcome from the provision of vocational rehabilitation services.

(15) Individual with a most significant disability--An individual with a significant disability who:

(A) is seriously limited in four or more functional capacities (such as the inability to obtain or retain employment independently, obtain a driver's license without special optical accommodations, care for self independently, access standard print, travel independently, socially interact with others, access technology without special adaptations, or manage one's home independently) in terms of an employment outcome;

(B) requires, in addition to comprehensive assessment, counseling, guidance, and employment assistance, at least four other substantial VR services; and

(16) Individual with a significant disability--An individual with a disability:

(A) Who has a severe physical or mental impairment that seriously limits one or more functional capacities (such as mobility, communication, self-care, self-direction, interpersonal skills, work tolerance, or work skills) in terms of an employment outcome;

(B) Whose vocational rehabilitation can be expected to require multiple vocational rehabilitation services over an extended period of time; and

(C) Who has one or more physical or mental disabilities resulting from amputation, arthritis, autism, blindness, burn injury, cancer, cerebral palsy, cystic fibrosis, deafness, head injury, heart disease, hemiplegia, hemophilia, respiratory or pulmonary dysfunction, mental retardation, mental illness, multiple sclerosis, muscular dystrophy, musculo-skeletal disorders, neurological disorders (including stroke and epilepsy), spinal cord conditions (including paraplegia and quadriplegia), sickle cell anemia, specific learning disability, end-stage renal disease, or another disability or combination of disabilities determined on the basis of an assessment for determining eligibility and vocational rehabilitation needs to cause comparable substantial functional limitation.

(17) Individualized Plan for Employment (IPE)--A written record that documents all phases of the consumer's rehabilitation process as developed by the counselor and the consumer.

(18) Maintenance--Monetary support authorized in an IPE for those expenses, such as food, shelter, clothing, that are in excess of the normal expenses of a consumer or an applicant receiving extended evaluation services and that are necessitated by the person's participation in a program of vocational rehabilitation services.

(19) Ongoing support services--As used in the definition of "supported employment," services that are needed to support and maintain a person with a most significant disability in supported employment, identified based on a determination by the Division [ ~~commission~~ ] of the person's needs as specified in an IPE; and furnished by the Division [ ~~commission~~ ] from the time of job placement until transition to extended services, unless post-transition services are provided, following transition; and thereafter by one or more extended services providers throughout the person's term of employment in a particular job placement or multiple placements if those placements are being provided under a program of transitional employment.

(20) Personal assistance services--A range of services provided by one or more persons that is designed to assist a consumer to perform daily living activities on or off the job that the individual would typically perform without assistance if the individual did not have a disability.

(21) Physical and mental restoration services--The following services:

(A) corrective surgery or therapeutic treatment that is likely, within a reasonable period of time, to correct or modify substantially a stable or slowly progressive physical or mental impairment that constitutes a substantial impediment to employment;

(B) diagnosis of and treatment for mental or emotional disorders by qualified personnel in accordance with state licensure laws;

(D) nursing services;

(E) necessary hospitalization (either inpatient or outpatient care) in connection with surgery or treatment and clinic services;

(F) drugs and supplies;

(G) prosthetic, orthotic, or other assistive devices, including hearing aids;

(H) eyeglasses and visual services, including visual training, and the examination and services necessary for the prescription and provision of eyeglasses, contact lenses, microscopic lenses, telescopic lenses, and other special visual aids prescribed by personnel that are qualified in accordance with state licensure laws;

(I) podiatry;

(J) physical therapy;

(K) occupational therapy;

(L) speech or hearing therapy;

(M) mental health services;

(N) treatment of either acute or chronic medical complications and emergencies that are associated with or arise out of the provision of physical and mental restoration services, or that are inherent in the condition under treatment;

(O) special services for the treatment of consumers with end-stage renal disease, including transplantation, dialysis, artificial kidneys, and supplies; and

(P) other medical or medically-related rehabilitation services.

(22) Physical or mental impairment--An injury, disease, or other condition that materially limits, or if not treated is expected to materially limit, mental or physical functioning.

(23) Post-employment services--One or more of the goods and services identified in §106.551(f)(7) [ ~~§163.25~~ ] of this title (relating to Goods and Services) that are provided subsequent to the achievement of an employment outcome and that are necessary to maintain, regain, or advance in employment, consistent with the individual's strengths, resources, priorities, concerns, abilities, capabilities, and interests.

(24) Rehabilitation engineering--The systematic application of engineering sciences to design, develop, adapt, test, evaluate, apply, and distribute technological solutions to problems confronted by individuals with disabilities in functional areas, such as mobility, communications, hearing, vision, and cognition, and in activities associated with employment, independent living, education, and integration into the community.

(25) Rehabilitation technology--The systematic application of technologies, engineering methodologies, or scientific principles to meet the needs of, and address the barriers confronted by, individuals with disabilities in areas that include education, rehabilitation, employment, transportation, independent living, and recreation. The term includes rehabilitation engineering, assistive technology devices, and assistive technology services.

(26) Representative--Any individual chosen by an applicant or consumer, including a parent, guardian, other family member, or advocate, unless a representative has been appointed by a court to represent the applicant or consumer, in which case the court-appointed representative is the representative.

(27) Self-employment--An employment outcome in which the individual works for profit or fee in his or her own business, farm, shop, or office, including sharecroppers. Not included within the definition is the employment outcome of licensed manager within Business Enterprises of Texas administered by the Division [ ~~Commission~~ ], supplemental income businesses, hobbies that periodically produce income, enterprises in which income is based solely or primarily on recruiting sales people to continue building the enterprise (commonly known as "pyramid" schemes), and enterprises prohibited by law or that sell products prohibited by law.

(28) Substantial impediment to employment--A physical or mental impairment (in light of attendant medical, psychological, vocational, educational, and other related factors) that hinders an individual from preparing for, entering into, engaging in, or retaining employment consistent with the individual's abilities and capabilities.

(29) Supported employment--Competitive work in an integrated setting with ongoing support services for individuals with the most significant disabilities for whom competitive employment has not traditionally occurred, or for whom competitive employment has been interrupted or intermittent as a result of a significant disability; and who, because of the nature and severity of their disabilities, need intensive supported employment services and extended services after transition in order to perform this work, or transitional employment for individuals with the most significant disabilities due to mental illness.

(30) Supported employment services--Ongoing support services and other appropriate services needed to support and maintain an individual with a most significant disability in supported employment.

(31) Transition services--A coordinated set of activities for a student, designed within an outcome-oriented process that promotes movement from school to post-school activities, including post-secondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation.

(32) Transitional employment--As used in the definition of "supported employment," a series of temporary job placements in competitive work in integrated work settings with ongoing support services for persons with the most severe disabilities due to mental illness.

(33) Transportation--Travel and related expenses that are necessary to enable a person to participate in a vocational rehabilitation service.

(34) Visual impairment--A visual acuity, with best correction, of 20/70 or less in the better eye, or a visual field of 30 degrees or less in the better eye, or a combination of both.

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 April 30, 2007.

TRD-200701645

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

2. BASIC PROGRAM REQUIREMENTS

40 TAC §§106.523, 106.525, 106.527, 106.529, 106.531, 106.533, 106.535

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

§106.523.Eligibility.

(a) An applicant's eligibility for vocational rehabilitation services shall be based on the following requirements:

(1) The applicant must have a visual impairment.

(2) The applicant's visual impairment must constitute or result in a substantial impediment to employment for the applicant.

(3) Subject to §106.525 [ ~~§163.12~~ ] of this title (relating to Presumption of Benefit), the applicant must be capable of benefiting in terms of an employment outcome from the provision of vocational rehabilitation services.

(4) The applicant must require vocational rehabilitation services to secure, retain, or regain employment.

(b) No duration of residence requirement is imposed that excludes from services any applicant who is present in the State.

(c) No applicant or group of applicants shall be excluded or found ineligible solely on the basis of the type of disability.

(d) The eligibility requirements shall be applied without regard to the age, gender, race, color, creed, or national origin of the applicant.

(e) The eligibility requirements shall be applied without regard to the particular service needs or anticipated cost of services required by an applicant or the income level of an applicant or applicant's family.

§106.525.Presumption of Benefit.

(a) An applicant shall be presumed capable of benefiting in terms of an employment outcome unless the Division [ ~~commission~~ ] demonstrates, based on clear and convincing evidence, that the applicant is incapable of benefiting in terms of an employment outcome from vocational rehabilitation services. With respect to situations in which the issue concerns the severity of the applicant's disability and potential for employment outcome, the Division [ ~~commission~~ ] shall explore the individual's abilities, capabilities, and capacity to perform in work situations through the use of trial work experiences.

(b) "Clear and convincing evidence" means a high degree of certainty. Clear and convincing evidence might include, but is not limited to, a description of assessments, including situational assessments and supported employment assessments from service providers who have concluded that they would be unable to meet the individual's needs due to the severity of the individual's disability.

(c) Upon receiving appropriate evidence that establishes the applicant's eligibility for benefits under title II or title XVI of the Social Security Act due to blindness and the person has indicated a willingness to work, the Division [ ~~commission~~ ] presumes that the applicant meets the basic eligibility requirements in subsection (a) of §106.523 [ ~~§163.11~~ ] of this title (relating to Eligibility).

§106.527.Eligibility Determination Time Frame.

(a) Eligibility or ineligibility shall be determined no longer than 60 days after the person, or the person's representative, as appropriate, has signed and submitted an application for vocational rehabilitation services in accordance with provisions of §106.521 [ ~~§163.10~~ ] of this title (relating to Application).

(b) Exceptions to exceeding the 60-day time frame for determining eligibility or ineligibility may occur only when:

(1) the Division [ ~~commission~~ ] notifies the applicant that unforeseen circumstances beyond the control of the Division [ ~~commission~~ ] preclude the Division [ ~~commission~~ ] from completing the determination in 60 days; and

(2) the applicant, or the applicant's representative, as appropriate, agrees to a specific extension of time; or

(3) the Division [ ~~commission~~ ] is exploring an individual's abilities, capabilities, and capacity to perform in work situations.

(c) Eligibility shall be determined prior to applying Division 4 of this subchapter [ ~~Subchapter D of this chapter~~ ] (relating to Order of Selection for [ ~~Payment of~~ ] Services) and Division 5 of this subchapter [ ~~Subchapter E of this chapter~~ ] (relating to Consumer Participation in Cost [ ~~the Payment~~ ] of Services).

§106.529.Data for Eligibility Determination.

(a) The Division [ ~~commission~~ ] bases its determination of eligibility on existing data, including information provided by the applicant or the applicant's family, education records, information used by the Social Security Administration, and, to the extent appropriate and available, determinations made by officials of other agencies.

(b) To the extent existing data do not describe the current functioning of the person or are unavailable, insufficient, or inappropriate to make an eligibility determination, the Division [ ~~commission~~ ] uses an assessment of additional data based on the provision of those vocational rehabilitation services, including assistive technology devices and services and work site assessments, that are necessary to determine whether a person is eligible.

§106.531.Ineligibility Determination.

(a) The Division [ ~~commission~~ ] shall make a determination of ineligibility only after providing an opportunity for full consultation with the individual, or as appropriate, with the individual's representative.

(b) The Division [ ~~commission~~ ] shall inform the individual in writing, supplemented by special modes of communication consistent with the informed choice of the individual, if necessary, of the ineligibility determination, including the reasons for the determination, the requirements under this chapter, and the means by which the applicant may express and seek remedy for any dissatisfaction, including the procedures for review of a determination by the counselor.

(c) The Division [ ~~commission~~ ] shall provide the individual with a description of services available from the client assistance program established under 34 CFR Part 370 and information on how to contact that program.

(d) The Division [ ~~commission~~ ] shall review any ineligibility determination based on a finding that the individual is incapable of achieving an employment outcome within 12 months, and annually thereafter if requested by the individual or the individual's representative, unless the individual has refused the review, the individual is no longer present in Texas, the individual's whereabouts is unknown, or the individual's medical condition is rapidly progressive or terminal.

§106.533.Case Closure.

(a) The Division [ ~~Commission~~ ] shall close a case when the person's rehabilitation plan has been completed and the person has been determined to have achieved and maintained continuous employment commensurate with the established employment goal for a minimum of 90 days, or sooner if:

(1) The Division [ ~~Commission~~ ] is unable to locate or contact the person.

(2) The person's disability is so severely limiting that there is little chance the person can be vocationally rehabilitated or the person's medical condition is expected to progress to such a severely limiting degree in a fairly short period of time that rehabilitation services will be of little or no help.

(3) The person has refused services or further services.

(4) The person has died.

(5) The person has been institutionalized.

(6) The person has been determined to have no disabling condition.

(7) The person has refused to cooperate with the Division [ ~~commission~~ ].

(8) Transportation is not feasible or available.

(9) The person has been determined to have no impediment to employment.

(10) The person's case has been transferred to another agency.

(b) Case closure is made with the full knowledge of the person when the person is available.

§106.535.Individualized Plan for Employment (IPE).

(a) All IPE's shall be written on the form prescribed by the Division [ ~~commission~~ ] for this purpose.

(b) The Division [ ~~commission~~ ] shall advise each consumer or, as appropriate, the consumer's representative, of the consumer's options and all Division [ ~~commission~~ ] procedures and requirements affecting the development and review of an IPE, including the availability of special modes of communication.

(c) In developing an IPE for a student with a disability who is receiving special education services, the Division [ ~~commission~~ ] shall consider the student's individualized education program.

(d) The IPE shall be reviewed with the consumer, or as appropriate, the consumer's representative, as often as necessary, but at least once each year, to assess the consumer's progress in meeting the objectives identified in the IPE.

(e) All substantive revisions necessary to reflect changes in the consumer's employment outcome, specific vocational rehabilitation services, service providers, and the methods used to procure services shall be incorporated into the consumer's IPE.

(f) The counselor shall provide the consumer, or, as appropriate, the consumer's representative, with a copy of the IPE, and its amendments, in the mode of communication specified by the consumer or representative.

(g) The data used for preparing the IPE shall be the information necessary to satisfy federal requirements and to adequately document a consumer's plan of services. Regardless of the approach selected by an eligible individual to develop an IPE, an individualized plan for employment shall, at a minimum, contain the following mandatory components:

(1) a description of the consumer's specific employment outcome;

(2) a description of the specific vocational rehabilitation services that are needed to achieve the employment outcome, including, as appropriate, the provision of assistive technology devices and assistive technology services, and personal assistance services, including training in the management of such services; and timelines for the achievement of the employment outcome and for the initiation of the services;

(3) a description of the entity chosen by the consumer or, as appropriate, the individual's representative, that will provide the vocational rehabilitation services, and the methods used to procure such services;

(4) a description of criteria to evaluate progress toward achievement of the employment outcome;

(5) the terms and conditions of the IPE, including, as appropriate, information describing:

(A) the responsibilities of the Division [ ~~Commission~~ ];

(B) the responsibilities of the consumer, including:

(i) the responsibilities the consumer will assume in relation to the employment outcome of the individual;

(ii) if applicable, the participation of the consumer in paying for the costs of the plan; and

(iii) the responsibility of the consumer with regard to applying for and securing comparable benefits; and

(iv) the responsibilities of other entities as the result of arrangements made pursuant to comparable services or benefits;

(6) for a consumer with the most significant disabilities for whom an employment outcome in a supported employment setting has been determined to be appropriate, information identifying:

(A) the extended services needed by the eligible individual; and

(B) the source of extended services or, to the extent that the source of the extended services cannot be identified at the time of the development of the individualized plan for employment, a description of the basis for concluding that there is a reasonable expectation that such source will become available; and

(7) as determined to be necessary, a statement of projected need for post-employment services.

(h) Prior to suspending, reducing, or terminating any planned service in the IPE, the agency shall send written notification of intent to the consumer's last known address.

(i) The agency shall suspend, reduce or terminate a consumer's planned services no sooner than 10 working days after written notification has been mailed to the consumer.

(j) The Division [ ~~Commission~~ ] shall not institute a suspension, reduction, or termination of services being provided under an IPE in instances in which the consumer has filed a request for a formal hearing or informal review, pending final resolution unless the individual or, in an appropriate case, the individual's representative so requests or the agency has evidence that the services have been obtained through misrepresentation, fraud, collusion, or criminal conduct on the part of the individual.

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 April 30, 2007.

TRD-200701646

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

3. VOCATIONAL REHABILITATION SERVICES

40 TAC §§106.551, 106.553, 106.557, 106.559, 106.561, 106.564, 106.566, 106.574, 106.578, 106.580, 106.582

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

§106.551.Goods and Services.

(a) The Division [ ~~commission~~ ], as appropriate to the vocational rehabilitation needs of each eligible person, provides goods and services necessary to render a consumer employable, subject to certain limitations prescribed in this subchapter and application of Division 4 of this subchapter [ ~~Subchapter D of this chapter~~ ] (relating to Order of Selection for [ ~~Payment of~~ ] Services), and Division 5 of this subchapter [ ~~Subchapter E of this chapter~~ ] (relating to Consumer Participation in [ ~~the~~ ] Cost of Services).

(b) Services are provided only when planned in advance and contained in the consumer's IPE.

(c) Subject to the limitation prescribed in subsection (b) of this section, the following vocational rehabilitation services are available on an as-needed basis:

(1) assessment to determine eligibility;

(2) assessment to determine vocational rehabilitation needs;

(3) vocational counseling and guidance;

(4) physical and mental restoration services;

(5) vocational and other training services, including personal and vocational adjustment training, books, tools, and other training materials, except that no training or training services in an institution of higher education (universities, colleges, community or junior colleges, vocational schools, technical institutes, or hospital schools of nursing) may be paid for with funds received under the provisions of the Act unless maximum efforts have been made by the Division [ ~~commission~~ ] and the individual to secure grant assistance in whole or in part from other sources to pay for that training;

(6) maintenance as defined in §106.511 [ ~~§163.5~~ ] of this title (relating to Appeals of Determinations);

(7) transportation as defined in §106.511 [ ~~§163.5~~ ] of this title;

(8) vocational rehabilitation services to family members of an applicant or eligible individual if necessary to enable the applicant or eligible individual to achieve an employment outcome;

(9) interpreter services and note-taking services for persons who are deaf and tactile interpreting for persons who are deaf-blind;

(10) reader services, rehabilitation teaching services, and orientation and mobility;

(11) recruitment and training services to provide new employment opportunities in the fields of rehabilitation, health, welfare, public safety, law enforcement, and other appropriate public services employment;

(12) job search, placement assistance, and job retention services;

(13) personal assistance services as defined in §106.511 [ ~~§163.5~~ ] of this title;

(14) post-employment services as defined in §106.511 [ ~~§163.5~~ ] of this title;

(15) occupational licenses, tools, equipment, and initial stocks and supplies;

(16) transition services as defined in §106.511 [ ~~§163.5~~ ] of this title;

(17) referral services;

(18) supported employment services as defined in §106.511 [ ~~§163.5~~ ] of this title;

(19) rehabilitation technology services as defined in §106.511 [ ~~§163.5~~ ] of this title; and

(20) technical assistance and other consultation services.

(d) If comparable services or benefits exist under any other program and are available to the consumer at the time needed to achieve the rehabilitation objectives in the individual's IPE, the Division [ ~~commission~~ ] shall use those comparable services or benefits to meet, in whole or in part, the cost of vocational rehabilitation services.

(e) If comparable services or benefits exist under any other program, but are not available to the consumer at the time needed to satisfy the rehabilitation objectives in the individual's IPE, the Division [ ~~commission~~ ] shall provide vocational rehabilitation services until those comparable services and benefits become available.

(f) The following services are exempt from a determination of the availability of comparable services and benefits:

(1) Assessment for determining eligibility and priority for services.

(2) Assessment for determining vocational rehabilitation needs.

(3) Vocational rehabilitation counseling, guidance, and referral services.

(4) Vocational and other training services, such as personal and vocational adjustment training, books (including alternative format books accessible by computer and taped books), tools, and other training materials in accordance with subsection (c) [ ~~(d)~~ ](5) of this section.

(5) Placement services.

(6) Rehabilitation technology.

(7) Post-employment services consisting of the services listed under subsection (b)(1) - (6) of this section.

(g) The requirements of subsection (e) of this section also do not apply if:

(1) the determination of the availability of comparable services and benefits under any other program would delay the provision of vocational rehabilitation services to any consumer who is determined to be at extreme medical risk, based on medical evidence provided by an appropriate qualified medical professional; or

(2) an immediate job placement would be lost due to a delay in the provision of comparable services and benefits.

§106.553.Assessment for Determining Eligibility, Vocational Rehabilitation Needs, and Assessment for Rehabilitation Technology.

(a) The Division [ ~~commission~~ ] conducts assessments for determining eligibility, vocational rehabilitation needs, and, if necessary, rehabilitation technology for each consumer in order to develop an IPE that is designed to achieve the consumer's vocational goal. The vocational goal shall be an employment outcome that is consistent with the person's unique strengths, resources, priorities, concerns, abilities, capabilities, and career interests.

(b) If additional data are necessary to prepare an IPE, the Division [ ~~commission~~ ] conducts a comprehensive assessment of the consumer's unique strengths, resources, priorities, interests, and needs, including the need for supported employment services, in the most integrated setting possible, consistent with the informed choice of the consumer.

(c) A comprehensive assessment is limited to information that is necessary to identify the rehabilitation needs and to develop the rehabilitation program for the consumer, but may, to the extent needed, include the following:

(1) a comprehensive analysis of pertinent medical, psychiatric, psychological, and other pertinent vocational, educational, cultural, social, recreational, and environmental factors, and related functional limitations, that affect the employment and rehabilitation needs of the consumer;

(2) an analysis of the consumer's personality, career interests, interpersonal skills, intelligence and related functional capacities, educational achievements, work experience, vocational aptitudes, personal and social adjustments, and employment opportunities;

(3) an appraisal of the consumer's patterns of work behavior and services needed to acquire occupational skills and to develop work attitudes, work habits, work tolerance, and social and behavior patterns suitable for successful job performance; and

(4) an assessment, through provision of rehabilitation technology services, of the consumer's capacities to perform in a work environment, including in an integrated setting, to the maximum extent feasible and consistent with the consumer's informed choice.

(d) In preparing the comprehensive assessment, the Division [ ~~commission~~ ] shall use, to the maximum extent possible and appropriate and in accordance with confidentiality requirements, existing information, information provided by the consumer, and information provided by the consumer's family and education agencies.

§106.557.Vocational and Other Training Services.

(a) All equipment purchased by the Division [ ~~commission~~ ] for the purpose of training shall remain the property of the Division [ ~~commission~~ ].

(b) Academic training in institutions of higher education (universities, colleges, community or junior colleges, vocational schools, technical institutes, or hospital schools of nursing) shall be subject to the following:

(1) Academic training in vocational schools and technical institutes shall be provided only in schools that are certified by the State of Texas.

(2) No academic training shall be paid from vocational rehabilitation funds unless maximum efforts have been made by the agency and the consumer to secure grant assistance in whole or in part from other sources to pay for such training.

(3) The consumer must contact the college or university and apply for any available financial aid.

(4) The PELL grant, like any other comparable services and benefits, shall be applied to the educational process prior to the expenditure of Division [ ~~commission~~ ] funds for services under this section. Services shall not be denied pending receipt of a PELL grant, but shall be contingent upon the consumer's making application if eligible.

(5) Academic training shall be provided through public tax-supported colleges and universities in Texas unless:

(A) a specific curriculum related to the student's academic major is not available at a Texas public institution, or

(B) academic training elsewhere is determined to be more economical, or

(C) academic training elsewhere provides specialized services needed by the consumer, such as services provided at Gallaudet University for students who are deaf.

(6) If the consumer chooses to obtain academic training out of Texas and the provisions in paragraph (5) of this subsection [ ~~section~~ ] do not apply, academic support shall be limited to that which the person would receive if they attended a state-supported college or university in Texas.

(7) Consumers who are blind and who do not meet the residency requirements of a particular institution and are not eligible for tuition exemption under the Texas Education Code, §54.205, may receive tuition assistance from the Division [ ~~commission~~ ] regardless of economic need of the consumer; however, such payments shall not exceed the tuition paid for a student who does meet the residency requirements.

(8) Tuition and fee exemption is an exemption from payment of tuition and/or required fees normally charged by a state-supported college or university. Required fees include student services, building use, health center, lab fees, and property deposits not reimbursable to the student. Required fees do not include optional fees.

(9) Any equipment purchased for a consumer during academic training must be needed by the consumer to help maintain academic success so the vocational goal can be met.

(10) Academic training shall not include continuing education required for maintaining certification in a field in which an individual is already gainfully employed.

(11) If a consumer is blind and is attending a non-tax-supported college or university, tuition and fees may be paid by the Division [ ~~commission~~ ] regardless of economic need of the consumer. However, the Division [ ~~commission~~ ] shall not pay tuition and fees in excess of the college or university's published rate for training. If the college or university does not have a published rate, tuition and fees shall be paid at rates in accordance with a written agreement between the college or university and the Division [ ~~commission~~ ].

(12) Once admitted to academic training:

(A) A consumer must maintain and complete a full-time course load as defined by the college or university. This requirement may be waived if:

(i) the person is a graduating senior;

(ii) the person is an incoming freshman (first two semesters or quarters);

(iii) the person is a returning adult (first academic year only);

(iv) the person is in summer school; or

(v) other extenuating circumstances prevent the consumer from participating in a full-time course load.

(B) The consumer shall meet with the counselor at least once each semester, shall submit add or drop slips as changes occur, and shall provide grade slips or transcripts to the counselor at the end of each semester.

§106.559.Maintenance.

Maintenance needed for the consumer or applicant receiving extended evaluation to receive all services except diagnostic services is subject to application of Division 5 [ ~~Subchapter E~~ ] of this subchapter [ ~~chapter~~ ] (relating to Consumer Participation in Cost [ ~~Payment~~ ] of Services).

§106.561.Transportation.

(a) Transportation may include travel and related expenses for an attendant or aide if the services of that person are necessary to enable the consumer to travel.

(b) Transportation available to the consumer without cost to the Division [ ~~commission~~ ] shall be used first.

(c) Transportation provided by a consumer shall be reimbursed at a rate no more than the rate authorized for state employees traveling on official business.

(d) To seek reimbursement for transportation, the consumer must submit a statement to the Division [ ~~commission~~ ] noting, at a minimum, the starting point, destination, and the number of miles traveled, and any other information as may be required by the Division [ ~~commission~~ ] to satisfy state requirements.

§106.564.Interpreter Services and Note-taking Services for Individuals Who Are Deaf and Tactile Interpreting for Individuals Who Are Deaf-Blind.

If available, the Division [ ~~commission~~ ] shall use interpreters certified by the DARS, Division for Rehabilitation Services, Office for Deaf and Hard of Hearing Services [ ~~Texas Commission for the Deaf and Hard of Hearing~~ ] or by the Registry of Interpreters in the delivery of services to persons who are deaf or deaf-blind.

§106.566.Reader Services, Rehabilitation Teaching Services, and Orientation and Mobility Services.

(a) Reader services shall be available only to consumers who are blind and who are receiving vocational or academic training.

(b) The consumer shall use all other available reading sources to the maximum degree possible prior to seeking reimbursement from the Division [ ~~commission~~ ] for reader services.

(c) The maximum amount allowed per month for reader services shall be calculated according to the number of semester hours the student is taking, whether during a fall, spring or summer semester, and whether the student is an undergraduate or graduate student. The rate of reimbursement is available from any Division [ ~~commission~~ ] office during work hours.

(d) The Division [ ~~commission~~ ] shall not pay for reader services rendered by a member of the consumer's family.

(e) To receive reimbursement for reader services, the consumer must submit the information required by the Division [ ~~commission~~ ] on a prescribed form.

(f) When practical, the Division [ ~~commission~~ ] provides orientation and mobility training at a rehabilitation center such as Criss Cole Rehabilitation Center, followed in priority by the use of certified orientation and mobility specialists on staff at local lighthouses for the blind, independent certified mobility specialists or persons who have degrees specializing in orientation and mobility, and Division [ ~~commission~~ ] rehabilitation teachers.

§106.574.Personal Assistance Services.

(a) Personal attendant services are a part of personal assistance services, as that term is defined in §106.509 [ ~~§163.4~~ ] of this title relating to (Definitions) , which assist an individual with a severe disability or most severe disability with activities such as transferring, dressing and undressing, eating, toileting, weight shifting, mobility, writing, and reading, while the individual is receiving vocational rehabilitation services.

(b) A consumer who is an individual with a significant disability or a most significant disability may receive personal attendant services if:

(1) the consumer is actively receiving another vocational rehabilitation service covered in §106.551 [ ~~§163.25~~ ] of this title (pertaining to Goods and Services), and

(2) personal attendant services are necessary for the consumer to achieve an employment outcome.

(c) Consumers may either hire their own personal attendants or allow the Division [ ~~Commission~~ ] to provide personal attendants through a source licensed in the State of Texas to provide personal attendant services.

(d) Consumers who hire their own personal attendant shall be considered the employer under applicable employer tax laws, and shall be responsible for:

(1) hiring and firing the attendant;

(2) training the attendant in the delivery of services;

(3) supervising the attendant in the delivery of services or arranging for a friend or relative to provide direct supervision of the attendant; and

(4) terminating the services of the attendant.

(e) Consumers shall be responsible for informing their counselors of any dissatisfaction with services rendered by personal attendants.

(f) To receive reimbursement for personal attendant services, the consumer or service provider must submit a monthly written statement to the Division [ ~~Commission~~ ] that contains the services rendered by the attendant during the consumer's vocational rehabilitation activity, the number hours worked by the attendant, and any additional information specified by the consumer's counselor that is needed to process reimbursement payments in a timely manner.

(g) Personal attendant services may be continued for three months after the consumer enters employment. This time period may be extended for one additional month upon determination of need.

(h) Personal attendant services are subject to Division 5 [ ~~Subchapter E~~ ] of this subchapter [ ~~chapter~~ ] (relating to Consumer Participation in the Cost of Services).

§106.578.Supported Employment Services.

(a) A consumer may receive supported employment services if:

(1) the consumer is an individual with a most severe disability, and

(2) the comprehensive assessment of rehabilitation needs of the consumer identifies supported employment as the appropriate employment outcome.

(b) Supported employment services are limited to 18 months unless the consumer and the Division [ ~~commission~~ ] jointly agree to extend the time in order to achieve the rehabilitation objectives identified in the consumer's IPE.

(c) The Division [ ~~commission~~ ] coordinates supported employment services with the individualized plans established under other federal and state programs.

(d) Ongoing services provided to the consumer during supported employment services shall include an assessment of employment stability and provision of specific services, or the coordination of services at or away from the worksite that are needed to maintain stability.

(e) Ongoing services provided to the consumer during supported employment services shall consist of the following:

(1) any particularized assessment supplementary to the comprehensive assessment of rehabilitation needs described in this part;

(2) the provision of skilled job trainers who accompany the individual for intensive job skill training at the work site;

(3) job development and placement;

(4) social skills training;

(5) regular observation or supervision of the individual;

(6) follow-up services including regular contact with the employers, the individuals, the parents, family members, guardians, advocates or authorized representatives of the individuals, and other suitable professional and informed advisors, in order to reinforce and stabilize the job placement;

(7) facilitation of natural supports at the worksite;

(8) any other service or similar service identified in the scope of vocational rehabilitation services described in §106.551 [ ~~§163.25~~ ] of this title (relating to Goods and Services).

§106.580.Rehabilitation Technology Services.

(a) Assistive technology devices are purchased only after evaluation of individual need and cost. Simple and less expensive alternatives shall be considered first.

(b) A consumer shall return to the Division [ ~~commission~~ ] any assistive technology device no longer needed for training, employment, or pursuit of employment.

§106.582.Establishing a Small Business as an Employment Outcome.

(a) The Division [ ~~Commission~~ ] recognizes that self-employment through the establishment of a small business may be a viable employment outcome for certain consumers. The purpose of the rules in this section is to implement federal regulations (34 CFR Part 361, §361.48) that authorize the provision of technical assistance and other consultation services to conduct market analyses, develop business plans, and otherwise provide resources to eligible individuals who are establishing a small business operation as an employment outcome.

(b) When a consumer expresses an interest in establishing a small business as an employment outcome, the Division [ ~~Commission~~ ] shall make an assessment of the consumer's potential and aptitude for self-employment before any efforts are made to attain that goal. In doing so, the Division [ ~~Commission~~ ] shall utilize those resources available for the purposes of assessing the potential and aptitude of the consumer for successful self-employment. Such measures may include, but are not necessarily limited to, the use of standardized tests and surveys intended to measure vocational aptitudes as well as a consideration of the consumer's personal characteristics such as prior education, work experience, achievements, physical and psychological health, and independence.

(c) After a preliminary assessment as described in subsection (b) of this section, if the consumer and Division [ ~~Commission~~ ] agree that establishing a small business as an employment outcome should be further considered, the consumer shall submit to the Division [ ~~Commission~~ ] a written proposal. The proposal shall provide in reasonable detail such information as will inform the Division [ ~~Commission~~ ] of the financial and other support which will be requested of the Division [ ~~Commission~~ ] for the purposes of establishing a small business. The information required in the proposal shall include, but is not necessarily limited, to the following:

(1) The type of business proposed;

(2) The location from which the business will be operated;

(3) An itemized list of all equipment, appliances, supplies, initial start-up capital, and other materials requested from the Division [ ~~Commission~~ ], including the source of each item and its cost; and

(4) An itemized list of all equipment, appliances, supplies, start-up capital and other materials to be provided by the consumer or other sources, including the source of each item and its cost.

(5) An itemized list of all certificates and permits required by law in order to operate the business.

(d) With respect to any proposed small business, the Division [ ~~Commission~~ ] shall require, in addition to any other relevant matters, verification that the consumer has sought funding for the start up of the small business from other available sources, including but not limited to the Small Business Administration, the Texas Division of Economic Development, community development funds that may be available for the purpose of establishing small business enterprises in the locality in which the consumer resides, funds from other sources such as programs for certain populations (e.g., programs that assist women, minorities or low-income individuals to start or expand a business), the Social Security Administration, or any other similar governmental or private funding source.

(e) In order to make the consumer a stakeholder with a vested interest in the success of the small business and to encourage the necessary diligence, perseverance, and commitment to enhance the possibility of success, the consumer shall be required to contribute to the start-up costs of the business in such amounts as may be required by the Division [ ~~Commission~~ ]. In determining the amounts required to be provided by the consumer, the Division [ ~~Commission~~ ] shall consider funds available to the consumer from other sources as well as funds available to the Division [ ~~Commission~~ ] under its then current budget limitations. The contribution required of the consumer may be satisfied in whole or in part by in-kind contributions (personal assets provided by the consumer, which may include, but are not necessarily limited, to such items as tools, furniture, supplies, business space) and funds acquired or to be acquired from other sources as described in subsection (d) of this section.

(f) In addition to the written proposal required by subsection (c) of this section and the financial details required by subsection (d) of this section, the consumer shall prepare and submit to the Division [ ~~Commission~~ ] a business plan. The business plan shall describe the plans of the consumer to market the business operations, the demographics of the area intended to be served as such relate to the particular business being considered, the potential for growth and expansion, and the potential of employing other persons in the business, as well as any other information relevant to the operation of the small business. A copy of a suggested format for writing a business plan shall be provided to the consumer by the Division [ ~~Commission~~ ]. The Division [ ~~Commission~~ ] shall provide technical assistance in preparing a business plan appropriate to the individual and the amount of funds requested to establish the small business. The consumer may be required to consult with entities providing services to individuals seeking to establish and operate small businesses, such as the Texas Workforce Commission, Small Business Administration, Small Business Development Centers, Senior Corps of Retired Executives (SCORE), or other similar organizations that offer guidance in the preparation of business plans or self-employment. Any requirement shall be discussed in advance with the consumer and included on the consumer's individualized plan for employment.

(g) Identifying a business location and signing any necessary lease agreements are the sole responsibilities of the consumer.

(h) Costs of renovations or remodeling shall be limited to those costs essential to start the business.

(i) The ongoing costs after the commencement of the business are the full responsibility of the consumer, and the Division [ ~~Commission~~ ] shall have no responsibility for further financial or other assistance to the consumer subsequent to the commencement of the business.

(j) The Division's [ ~~Commission's~~ ] self-employment services do not include the purchase of any of the following items; however, the cost of these items, if necessary to the business, may be included in the business plan in arriving at the total cost of establishing the business and may be considered as a part of the consumer's contribution:

(1) utility or other deposits;

(2) insurance;

(3) sales tax security deposit;

(4) bonding fees;

(5) the purchase or rental of real estate;

(6) operating capital (cash), except any initial amount agreed to be furnished by the Division [ ~~Commission~~ ] as initial cash start-up costs;

(7) vehicles, boats, aircraft, or trailers requiring title of ownership; and

(8) firearms.

(k) The consumer is responsible for obtaining and completing application for all certificates and permits required by law in order to operate the business. Assistance with these applications is available from the Division [ ~~Commission~~ ].

(l) After reviewing the proposal and business plan pursuant to the requirements of this section, the Division [ ~~Commission~~ ] shall notify the consumer in a format accessible to the consumer if the plan has been approved as an employment outcome and whether the Division [ ~~Commission~~ ] shall provide funding and, if so, the extent of such funding as well as any other assistance to be provided to the consumer in establishing the small business. Appeals of decisions not to approve a plan or to fund a plan may be filed in accordance with procedures contained in §101.811 [ ~~§161.1~~ ], et seq., of this title, pertaining to appeals and hearing procedures.

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 April 30, 2007.

TRD-200701647

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

4. ORDER OF SELECTION FOR SERVICES

40 TAC §106.605

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

§106.605.Order of Selection.

(a) If it becomes necessary, due to limited funds, for the Division [ ~~Commission~~ ] to operate under an order of selection, vocational rehabilitation services shall be provided according to the following priorities:

(1) Priority 1--Persons who meet the definition of individual with a most significant disability.

(2) Priority 2--Persons who meet the definition of individual with a significant disability.

(3) Priority 3--Persons who meet the definition of individual with a disability.

(b) To inquire if the agency is operating under the order of selection, a person may contact any Division [ ~~commission~~ ] office, including the central office at 4800 North Lamar, Austin, Texas, toll-free 800-252-5204.

(1) implement the order of selection on a statewide basis;

(2) notify all eligible individuals of the priority categories in the order of selection, their assignment to a particular category, and their right to appeal their category assignment;

(3) continue to provide all needed services to any consumer who has begun to receive services under an IPE prior to the effective date of the order of selection, irrespective of the severity of the individual's disability; and

(4) ensure that its funding arrangements for providing services under the State plan, including third-party arrangements and awards under the establishment authority, are consistent with the order of selection. If any funding arrangements are inconsistent with the order of selection, the Division [ ~~commission~~ ] shall renegotiate these funding arrangements so that they are consistent with the order of selection.

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 April 30, 2007.

TRD-200701648

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

5. CONSUMER PARTICIPATION IN COST OF SERVICES

40 TAC §§106.621, 106.623, 106.625, 106.627, 106.631, 106.633

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

§106.621.Purpose of Division 5 [ ~~Subchapter~~ ].

The purpose of Division 5 [ ~~this subchapter~~ ] is to establish consumer participation in service costs to encourage the consumer's commitment to a vocational rehabilitation goal, to create a cooperative relationship between the consumer and the Division [ ~~commission~~ ], and to maximize the Division's [ ~~commission's~~ ] limited funds.

§106.623.Scope of Division 5 [ ~~Subchapter~~ ].

(a) In addition to the exception noted in subsection (b) of this section, all vocational rehabilitation services are subject to this Division 5 [ ~~subchapter~~ ] except the following:

(1) assessment for determining eligibility and priority for services, except for vocational rehabilitation services other than those of a diagnostic nature provided under an extended evaluation;

(2) assessment for determining vocational rehabilitation needs;

(3) vocational rehabilitation counseling, guidance, and referral services by Division [ ~~commission~~ ] staff;

(4) employment assistance services by Division [ ~~commission~~ ] staff;

(5) training;

(6) vocational rehabilitation teacher services (including consumable supplies);

(7) any auxiliary aid or service (e.g., interpreter services, reader services) that an individual with a disability needs in order to participate in the VR program; or

(8) orientation and mobility services;

(9) tuition and fees;

(10) assistive technology devices and other necessary equipment to improve the functional capabilities of an individual with a disability;

(11) personal assistance services; and

(12) services paid for or reimbursed by a source other than the Division [ ~~commission~~ ].

(b) Individuals receiving Social Security benefits under Titles II or XVI of the Social Security Act are exempt from this subsection.

(c) A consumer's required participation in the cost of establishing a small business when the consumer's vocational goal is self-employment is contained in §106.582 [ ~~§163.40~~ ] of this title, pertaining to Establishing a Small Business as an Employment Outcome.

§106.625.Definitions.

As used in Division 5 [ ~~this subchapter~~ ], the following words or terms have the following meanings unless the context clearly indicates otherwise.

(1) Dependent--A person carried as a dependent by the parents, foster parents, legal guardian, or conservator for income tax purposes during the current tax year, including consumers who are minors or dependents, consumers under 18 years of age and married but not living with their spouse and whose major source of income is from parents or legal guardians, and consumers adjudged legally incompetent.

(2) Economic resources--Net monthly income and liquid assets.

(3) Family--The consumer, including consumers who are minors or dependents; the consumer's parents or legal guardians; and all persons residing in the household for whom the consumer or parents or legal guardians have legal and/or financial responsibility.

(4) Liquid assets--Cash, bank accounts, and stocks and bonds, including certificates of deposit unless it is in a retirement account recognized by the Internal Revenue Service, such as an IRA or a Keogh.

(5) Minor--A person who is under 18 years of age who is not and has not been married or who has not had his disabilities of minority removed for general purposes. In the context of child support "child" includes a person over 18 years of age who is fully enrolled in an accredited secondary school in a program leading toward a high school diploma. "Adult" means any other person.

(6) Monthly income--Income derived from:

(A) wages and salaries, after deductions for:

(i) income tax;

(ii) social security tax;

(iii) one qualified retirement program;

(iv) health insurance premiums; and

(v) trade or professional dues and assessments;

(B) contributions received on a regular basis from family, persons, or organizations;

(D) public assistance payments;

(E) assistance from private welfare agencies;

(F) income from stock dividends and bond interest;

(G) income from child support payments;

(H) income from self-employment, which is defined as gross receipts, minus allowable Internal Revenue Service expenses, from one's own business which results in income. Gross receipts include the value of all goods sold and services rendered. Expenses include the cost of goods purchased, rent, utilities, wages and salaries paid, and business taxes (not personal income taxes or self-employment social security taxes);

(I) any available pension or insurance, including Social Security Disability Income (SSDI); health/hospitalization insurance plans; workers' compensation; veterans' benefits; Old Age and Survivors Insurance (OASI) from the Social Security Administration; labor union insurance and/or health and welfare benefits; and unemployment compensation; and

(J) participation in savings plans.

(7) Net monthly income--Monthly income, less allowed adjustments described in §106.631 [ ~~§163.65~~ ] of this title (relating to Allowed Adjustments To Calculate Net Monthly Income).

§106.627.General Procedures.

(a) The Division [ ~~commission~~ ] informs applicants of the rules on consumer participation in the cost of services upon application.

(b) All applicants and consumers, regardless of their economic resources, are asked if they can pay for any part of their rehabilitation program.

(c) Participation in the cost of services is determined after the eligibility requirements contained in §106.523 [ ~~§163.11~~ ] of this title (relating to Eligibility) and order of selection criteria contained in Division 4 of this subchapter [ ~~Subchapter D of this chapter~~ ] (relating to Order of Selection for [ ~~Payment of~~ ] Services) have been applied and approved.

(d) Participation in the cost of services is determined by the economic resources of all persons meeting the definition of family.

(e) The purchase of occupational tools and sophisticated technological equipment cannot always be anticipated before a consumer is employed. If special equipment needs are discovered after the consumer starts to work and without the equipment the consumer's job would be verifiably in jeopardy, consumer participation in the cost of purchase is based on the level of participation immediately preceding employment.

(f) Economic resources are evaluated at least annually or at any time the Division [ ~~commission~~ ] is purchasing a service and the Division [ ~~commission~~ ] has reason to believe the family's economic status has changed.

§106.631.Allowed Adjustments to Calculate Net Monthly Income.

It is not the intent of the Division [ ~~commission~~ ] to impose a financial hardship upon a family; therefore, monthly income is adjusted to net monthly income by subtracting the following:

(1) rent or home mortgage payments;

(2) disability-related expenses paid by the consumer, including medical payments as a result of disability and/or illness of family member;

(3) prescribed family medications and diets; and

(4) family obligations imposed by court order.

§106.633.Refusal to Disclose Economic Resources.

Applicants and persons included in the definition of family have the right to not disclose their economic resources. When this information is not disclosed, economic resources are determined by the Division [ ~~commission~~ ] to be in excess of the allowable amounts.

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 April 30, 2007.

TRD-200701649

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

6. MAXIMUM AFFORDABLE PAYMENT

40 TAC §106.651

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

§106.651.Scope of Division 6 [ ~~Subchapter~~ ].

(a) The maximum affordable payment is the maximum amount the Division [ ~~commission~~ ] pays for a medical or medically related service and interpreter services. However, the payment:

(1) shall not be so low as to effectively deny a person a necessary service; and

(2) shall permit exceptions so that individual needs can be addressed.

(b) The current schedule of maximum affordable payments is maintained for public view and inspection according to §106.507 [ ~~§163.3~~ ] of this title (relating to Public Access to Forms and Documents).

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 April 30, 2007.

TRD-200701650

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

7. SERVICE PROVIDERS

40 TAC §106.661

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

§106.661.Supported Employment Services Agreement.

(a) Supported employment services are purchased by written agreement with organizations or employers that commit to provide or arrange for extended support services for the consumer once Division [ ~~commission~~ ] responsibility for the case ceases.

(b) The Division [ ~~commission~~ ] does not reimburse the costs of extended support services.

(c) In the provision of supported employment services on a fee-for-service-basis, a service provider is required to sign an agreement that specifies, at a minimum, the following.

(1) Services shall be provided in accordance with supported employment guidelines contained in the agreement.

(2) A statement of services and a consumer progress report shall be rendered to the Division [ ~~commission~~ ] on a monthly basis in a form acceptable to the Division [ ~~commission~~ ].

(3) Authorized travel shall be in accordance with State of Texas travel regulations as they apply to employees of the state.

(4) The service provider shall comply with all applicable state and federal laws, including Chapter 81 of the Health and Safety Code regarding confidentiality, testing, medical records and information regarding HIV, Chapter 85 of the Health and Safety Code regarding model work place guideline requirements, and the Americans with Disabilities Act.

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 April 30, 2007.

TRD-200701651

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

8. CONFIDENTIALITY OF RECORDS

40 TAC §§106.671, 106.673, 106.675

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

§106.671.Confidentiality of Personal Information.

All applicant and consumer personal information furnished to and gathered by the Division [ ~~Commission~~ ] in the administration of this chapter, including names, addresses, records of agency evaluations, reports of medical examinations and treatments, financial information, and photographs, shall be held confidential in accordance with these rules, 34 Code of Federal Regulations §361.38 (concerning the protection, use, and release of personal information), Texas Human Resources Code, Title 5, §91.059 (concerning the misuse of information, and state laws concerning the abuse or neglect of children, elderly persons, and disabled persons ) .

§106.673.Conditions for the Release of Personal Information.

(a) Personal information shall not be disclosed directly or indirectly outside the Division [ ~~Commission~~ ] unless the applicant or consumer's consent has been obtained in writing, or unless the disclosure or release of personal information:

(1) is required by federal law;

(2) is required in response to investigations in connection with law enforcement, fraud or abuse, and in response to judicial order; or

(3) is required in order to protect the individual or others when the individual poses a threat to his or her own safety or the safety of others.

(b) Information containing identifiable personal information shall not be shared with advisory or other bodies that do not have official responsibility for administration of the program.

(c) Personal information may be released to an organization, agency, or individual engaged in audit, evaluation, or research only for purposes directly connected with the administration of the vocational rehabilitation program; or for purposes that would significantly improve the quality of life for applicants and eligible individuals and only if the organization, agency, or individual assures that:

(1) the information will be used only for the purposes for which it is being provided;

(2) the information will be released only to persons officially connected with the audit, evaluation, or research;

(3) the information will not be released to the involved individual;

(4) the information will be managed in a manner to safeguard confidentiality; and

(5) the final product will not reveal any personal identifying information without the informed written consent of the involved individual or the individual's representative.

§106.675.Access to Records by Applicants and Consumers.

(a) Subject to the exceptions contained in subsection (b) of this section, upon receiving a signed request from an applicant or consumer, the Division [ ~~Commission~~ ] shall, in a timely manner, provide a copy of all requested information maintained by the Division [ ~~Commission~~ ] relating to the applicant or consumer to the individual or the individual's representative.

(b) The following are exceptions to subsection (a) of this section:

(1) Medical, psychological, or other information that the Division [ ~~Commission~~ ] determines may be harmful to an applicant may not be released directly to the individual, but must be provided to the individual through a third party chosen by the individual, which may include, among others, an advocate, a family member, or a qualified medical or mental health professional, unless a representative has been appointed by a court to represent the individual, in which case the information must be released to the court-appointed representative.

(2) If personal information has been obtained from another agency or organization, it may be released only by, or under the conditions established by, the other agency or organization.

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 April 30, 2007.

TRD-200701652

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Subchapter D. INDEPENDENT LIVING PROGRAM

1. GENERAL INFORMATION

40 TAC §106.851, §106.855

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

§106.851.Program Purpose.

The Independent Living Program is a joint state-federal funded program administered by the Division [ ~~Commission~~ ] to assess, plan, develop, and provide independent living services to persons eligible under federal and state guidelines.

§106.855.Definitions.

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

(1) Act--The Rehabilitation Act of 1973, as amended.

(2) Blind (person who is)--A person whose visual acuity with best correction is 20/200 or less in the better eye, or a person with a limitation in the field of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees, which means a visual field of no greater than 20 degrees in the better eye.

(3) Comparable services and benefits--Services and benefits that are provided or paid for, in whole or in part, by other federal, state, or local public agencies, by health insurance, or by employee benefits; available to the consumer; and commensurate in quality and nature to the services that the consumer would otherwise receive from the Division [ ~~commission~~ ].

(4) Consumer--A person who has been determined eligible by the Division [ ~~commission~~ ] for independent living services.

(5) Disability--A physical or mental impairment that substantially limits one or more major life activities.

(6) Family--The consumer, parent(s), and/or legal guardian(s) and all individuals residing in the household for whom the consumer, parent(s) and/or legal guardian(s) have legal and financial responsibility.

(7) Independent Living Plan (IL Plan)--A written record that documents all phases of the consumer's rehabilitation process as developed by the independent living worker and the consumer.

(8) Individual with a significant disability--An individual with a visual impairment whose ability to function independently in the family or community or whose ability to obtain, maintain, or advance in employment is substantially limited and for whom the delivery of independent living services will improve the ability to function, continue functioning, or move toward functioning independently in the family or community or to continue in employment, respectively.

(9) Representative--A parent, legal guardian, or other representative appointed by the court to represent the individual or an advocate or other family member designated in writing by the individual to represent the individual.

(10) Transportation--Travel and related expenses that are necessary to enable a consumer to benefit from another independent living service and travel and related expenses for an attendant or aide if the services of that attendant or aide are necessary to enable an individual with a significant disability to benefit from that independent living service.

(11) Visual impairment--A visual acuity, with best correction, of 20/70 or less in the better eye, or a visual field of 30 degrees or less in the better eye, or a combination of both.

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 April 30, 2007.

TRD-200701653

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

2. BASIC PROGRAM REQUIREMENTS

40 TAC §§106.873, 106.875, 106.877, 106.879, 106.881

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

§106.873.Eligibility.

(a) Independent living services are available to individuals with a significant disability as the term is defined in §106.855 [ ~~§164.3~~ ] of this title, relating to definitions.

(b) The Division [ ~~Commission~~ ] shall apply eligibility requirements without regard to the individual's age, color, creed, gender, national origin, race, religion, or length of time present in Texas.

§106.875.Data for Eligibility Determination.

The Division [ ~~commission~~ ] shall, if possible, base its determination of eligibility on existing data, including information provided by the applicant or the applicant's family, education records, information used by the Social Security Administration and, to the extent appropriate and available, determinations made by officials of other agencies.

§106.877.Ineligibility Determination.

(a) Prior to making a determination of ineligibility, the Division [ ~~commission~~ ] shall consult with or provide a clear opportunity for consultation with the applicant or, in appropriate cases, the applicant's representative.

(b) The Division [ ~~commission~~ ] shall inform the applicant or the applicant's representative, in appropriate cases, in writing, or by special mode of communication if designated by the applicant, of an ineligibility determination, including the reasons for the determination, the requirements under this chapter, and the means by which the applicant may appeal the decision. The notice shall also include information on how to contact the Client Assistance Program in Texas. If appropriate, the Division [ ~~Commission~~ ] shall refer the applicant to other agencies and facilities.

(c) The Division [ ~~commission~~ ] shall review an ineligibility determination within 12 months unless the person has refused the review, the person is no longer present in Texas, the person's whereabouts are unknown, or the person's medical condition is rapidly progressive or terminal.

§106.879.Case Closure.

(a) The Division [ ~~Commission~~ ] shall close a case when the person's independent living plan has been completed, or sooner if:

(1) the person does not meet eligibility criteria;

(2) the person is unavailable during an extended period of time to complete an assessment of independent living needs and the Division [ ~~commission~~ ] has made repeated efforts to contact and encourage the applicant to participate;

(3) the person has refused services or further services;

(4) the person is no longer present in Texas;

(5) the person's whereabouts are unknown;

(6) the person's medical condition is rapidly progressive or terminal;

(7) the person has refused to cooperate with the Division [ ~~commission~~ ]; or

(8) the person's case has been transferred to another agency.

(b) Case closure shall be made with the full knowledge of the person when the person's whereabouts are known.

(c) The Division [ ~~commission~~ ] shall inform the consumer or the consumer's representative, in appropriate cases, in writing, or by special mode of communication if designated by the consumer, of the Division's [ ~~Commission's~~ ] intent to close the case and the means by which the consumer may appeal the decision.

§106.881.Independent Living (IL) Plan.

(a) Unless the consumer knowingly and voluntarily signs a waiver stating that an IL plan is unnecessary, an IL plan and all subsequent amendments shall be developed jointly by the independent living worker and consumer.

(b) The Division [ ~~commission~~ ] shall advise each consumer of Division [ ~~commission~~ ] procedures and requirements affecting the development and review of an IL plan, including the availability of special modes of communication.

(c) The IL plan shall be reviewed with the consumer at least once each year to assess the consumer's progress in meeting the objectives identified in the IL plan.

(d) The independent living worker shall incorporate into the IL plan any revisions that are necessary to reflect changes in the consumer's goal, intermediate objectives, or needs.

(e) To receive a copy of the IL plan and its amendments in a medium other than print, the consumer must inform the independent living worker of the preferred medium.

(f) The consumer must inform the Division [ ~~commission~~ ] of changes that will affect the provision of services.

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

Filed with the Office of the Secretary of State on April 30, 2007.

TRD-200701654

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

3. INDEPENDENT LIVING SERVICES

40 TAC §106.901, §106.903

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

§106.901.Goods and Services.

(a) Goods and services provided under this subchapter [ ~~chapter~~ ] must be necessary to assist the consumer to achieve a greater level of independence.

(b) Goods and services provided under this subchapter [ ~~chapter~~ ] shall be subject to application of §§106.931 - 106.943 [ ~~§§164.40 - 164.46~~ ] of this title pertaining to consumer participation in the cost of services.

(d) The agency shall use, to the maximum extent possible and allowed, comparable services and benefits from other sources for all goods and services to be provided under this subchapter [ ~~chapter~~ ].

§106.903.Transportation.

(a) Transportation that is available to the consumer without cost to the Division [ ~~commission~~ ] shall be used first.

(b) Transportation provided by the consumer shall be reimbursed at a rate no more than the rate for state employees traveling on state business.

(c) To seek reimbursement for transportation, the consumer must submit a statement to the Division [ ~~commission~~ ] noting, at a minimum, the starting point, destination, the number of miles traveled, and any other information as may be required by the Division [ ~~commission~~ ] to satisfy state requirements.

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 April 30, 2007.

TRD-200701655

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

5. CONSUMER PARTICIPATION IN COST OF SERVICES

40 TAC §§106.931, 106.933, 106.935, 106.937, 106.939, 106.941

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

§106.931.Purpose.

The purpose of this subchapter is to establish consumer participation in service costs to encourage the consumer's commitment to an independent living goal, to create a cooperative relationship between the consumer and the Division [ ~~commission~~ ], and to maximize the Division's [ ~~commission's~~ ] limited funds.

§106.933.Scope.

All goods and services provided under this chapter are subject to this subchapter except the following:

(1) diagnostics and evaluation services (includes maintenance and transportation);

(2) counseling, guidance, and referral services provided by Division [ ~~commission~~ ] staff;

(3) independent living worker services;

(4) orientation and mobility training;

(5) low vision evaluations;

(6) adaptive aids, appliances, and supplies under $50;

(7) interpreter services;

(8) Criss Cole Rehabilitation Center training (includes transportation to and from the center); and

(9) services paid for or reimbursed by a source other than the Division [ ~~commission~~ ].

(10) training in management of secondary disabilities or related health conditions.

§106.935.Definitions.

As used in this Division 5 [ ~~subchapter~~ ], the following words or terms shall have the following meanings unless the context clearly indicates otherwise.

(1) Dependent--A person carried as a dependent by the parents, foster parents, legal guardians, or conservator for income tax purposes during the current tax year, including consumers who are minors or dependents, consumers under 18 years of age and married but not living with their spouse and whose major source of income is from parents or legal guardians, and consumers adjudged legally incompetent.

(2) Economic Resources--Net monthly income.

(3) Minor--A person who is under 18 years of age who is not and has not been married or who has not had his disabilities of minority removed for general purposes. In the context of child support "child" includes a person over 18 years of age who is fully enrolled in an accredited secondary school in a program leading toward a high school diploma. "Adult" means any other person.

(4) Monthly income--Income derived from:

(A) wages and salaries, after deductions for:

(i) income tax;

(ii) social security tax;

(iii) one qualified retirement program;

(iv) health insurance premiums; and

(v) trade or professional dues and assessments;

(B) contributions received on a regular basis from family, persons, or organizations;

(D) scholarships and fellowships;

(E) public assistance payments;

(F) assistance from private welfare agencies;

(G) income from stock dividends and bond interest;

(H) income from child support payments;

(I) income from self-employment, which is defined as gross receipts, minus allowable Internal Revenue Service expenses, from one's own business which results in income. Gross receipts include the value of all goods sold and services rendered. Expenses include the cost of goods purchased, rent, utilities, wages and salaries paid, and business taxes (not personal income taxes or self-employment social security taxes);

(J) any available pension or insurance, including Social Security Disability Income (SSDI); health/hospitalization insurance plans; workers' compensation; veterans' benefits; Old Age and Survivors Insurance (OASI) from the Social Security Administration; labor union insurance and/or health and welfare benefits; and unemployment compensation; and

(K) participation in savings plans.

(5) Net monthly income--Monthly income, less allowed adjustments described in §106.941 [ ~~§164.45~~ ] of this title (relating to Allowed Adjustments to Calculate Net Monthly Income).

§106.937.General Procedures.

(a) The Division [ ~~commission~~ ] shall inform applicants of the rules on consumer participation in the cost of services upon application.

(b) All applicants and consumers, regardless of their economic resources, may be asked if they can pay for any part of their rehabilitation program.

(c) Participation in the cost of services shall be determined after eligibility requirements contained in §106.873 [ ~~§164.11~~ ] of this title (relating to eligibility) and order of selection criteria contained in Subchapter D of this title (relating to order of selection for independent living services) have been applied and approved.

(d) Participation in the cost of services shall be determined by the economic resources of all persons meeting the definition of family who have a legal obligation of support for the consumer.

(e) Economic resources shall be evaluated at least annually or at any time the Division [ ~~commission~~ ] is purchasing a service and/or the Division [ ~~commission~~ ] has reason to believe the family's economic status has changed.

§106.939.Maximum Allowable Amount.

(a) Economic resources in excess of the amount allowed by the Division [ ~~commission~~ ] must be used by the consumer to pay for the cost of independent living services. Maximum allowable amounts are contained in an Economic Resources Table available at any Division [ ~~commission~~ ] office.

(b) The maximum allowable amount may fluctuate according to relevant factors, such as established federal and state poverty levels, the funds available to the Division [ ~~commission~~ ] for services, and the number of persons meeting the definition of family.

§106.941.Allowed Adjustments to Calculate Net Monthly Income.

It is not the intent of the Division [ ~~commission~~ ] to impose a financial hardship upon a family; therefore, monthly income may be adjusted to net monthly income by subtracting the following:

(1) disability-related expenses paid by the family, including, but not limited to, medical payments as a result of disability and/or illness of family member,

(2) prescribed family medications and diets,

(3) rent or home mortgage payments, and

(4) family obligations imposed by court order.

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 April 30, 2007.

TRD-200701656

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

6. MAXIMUM AFFORDABLE PAYMENT

40 TAC §106.965

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

§106.965.Scope of Subchapter.

(a) The maximum affordable payment shall be the maximum amount the Division [ ~~commission~~ ] pays for a medical or medically related service and interpreter services. However, the payment:

(1) shall not be so low as to effectively deny a person a necessary service; and

(2) shall permit exceptions so that individual needs can be addressed.

(b) The current schedule of maximum affordable payments is maintained for public view and inspection in all offices.

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 April 30, 2007.

TRD-200701657

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Subchapter F. BLINDNESS EDUCATION, SCREENING AND TREATMENT PROGRAM

40 TAC §§106.1101, 106.1103, 106.1105, 106.1107

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

§106.1101.Purpose and Authority.

These sections describe the Blindness Education, Screening, and Treatment (BEST) Program administered by the Department of Assistive and Rehabilitative Services, Division for Blind Services [ ~~Texas Commission for the Blind~~ ] under the authority of Human Resources Code, §91.027. The Division [ ~~Commission~~ ] is authorized to implement the program only to the extent that funds are available under Transportation Code, §521.421(f).

§106.1103.Definitions.

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

(1) Division--Division for Blind Services [ ~~Commission--Texas Commission for the Blind~~ ].

(2) Resident--An individual who is physically present within the geographic boundaries of Texas; has an intent to remain within the state, either permanently or for an indefinite period; actually maintains an abode (e.g., house, apartment, etc., but not merely a post office box) within this state.

(3) Program--The Blindness Education, Screening and Treatment Program.

(4) Vision Screening--A nondiagnostic procedure that uses uniform testing techniques to assess the person's risk of vision loss and eye disease.

§106.1105.Vision Screening Services.

(a) To be eligible to receive program vision screening services, an individual must be an adult resident of the state.

(b) Vision screening services may be provided through a contractor.

(1) Persons who have attended and completed vision screening training from the Texas Division of Health and are currently certified as vision screeners; or

(2) Persons who have been trained by a vision screener currently certified by Department of State Health Services [ ~~Texas Department of Health~~ ] as a vision screener; or

(3) Persons who are eye care professionals licensed by the State of Texas (optometrists and ophthalmologists); or

(4) Persons who are trained and supervised by an eye care professional licensed by the State of Texas.

(d) Persons receiving vision screenings shall receive the screening results and, if necessary, a recommendation regarding the need for a follow-up examination by an eye care professional.

(e) When a referral is made for an eye examination to another agency or organization, the referral agency or organization's rules shall apply. A referral by the BEST program is not an endorsement of another agency, organization or eye care professional by the Department of Assistive and Rehabilitative Services, Division for Blind Services [ ~~Texas Commission for the Blind~~ ].

§106.1107.Treatment Services.

(a) The purpose of treatment services is to prevent blindness by providing medical or surgical intervention to individuals at risk who are not covered under an adequate health benefit plan.

(b) To be eligible to receive treatment services from the program, an individual must be an adult resident of the state who:

(1) has been referred to the program by the individual's treating physician or optometrist;

(2) has certified to the physician or optometrist that the individual does not have health insurance or other available resources with which to pay for prescribed treatment to prevent blindness; and

(3) has been certified by the physician or optometrist as having a medically urgent eye condition that poses an imminent risk of permanent and significant visual loss if not treated with surgery or medical intervention.

(c) Medically urgent eye conditions shall include glaucoma, diabetic retinopathy, and detached retina. Any other medical condition, to qualify, must be determined to be medically urgent by both the referral's physician and the Division's [ ~~Commission's~~ ] ophthalmologic consultant or his designee.

(d) The BEST program is funded with voluntary donations. It is expected that service demand will exceed program resources. Therefore, funds may not be available for treatment services at the time an individual is referred for assistance.

(e) If an eligible individual is denied services by the program based on the inadequacy of donations to cover the cost of services, the physician may request that the individual be placed on a waiting list pending receipt of adequate funds. Individuals on the waiting list shall be served in order by referral date and time.

(f) All treatment services, including prescription drugs, must be approved in advance by the program to qualify for payment. All prescribed treatment services and requested payments must be itemized on the program's application form.

(g) Over-the-counter and nonprescription drugs are not covered by the program. Program assistance with the cost of eye-related drugs prescribed by a physician to prevent blindness shall be limited to the time the drugs are prescribed by the treating physician or optometrist or one year, whichever is less. The following are the procedures for payment for prescription drugs:

(1) Payments for approved prescription drugs shall be made only to the individual's pharmacy of choice.

(2) The Division [ ~~Commission~~ ] shall pay for the prescription upon receiving an invoice.

(h) Payment for eye examinations that are a follow-up to a prescribed treatment paid for by the BEST Program and determined by a physician as medically necessary for chronic eye conditions such as glaucoma and diabetic retinopathy shall be limited to two examinations in the 12 months following surgery.

(i) Payments for treatment services shall be based on the agency's adopted rate schedule for eye-related medical services as specified in §101.3611 [ ~~§159.6~~ ] of this title [ ~~chapter~~ ] (also known as the agency's Maximum Affordable Payment Schedule).

(j) Claims for payment must be received within 90 days from the date of each service. Claims received by the program that are lacking the information necessary for processing shall be denied as incomplete claims. The resubmission of the claim containing the necessary information must be received by the program within 60 days from the last denial date or payment will be declined. Excepted from this requirement is the payment for refills of drugs prescribed during the allowed period of one year.

(k) The program shall not pay cancellation charges, charges for missed appointments, or any other charge incurred other than for the actual provision of services.

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

Filed with the Office of the Secretary of State on April 30, 2007.

TRD-200701658

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Subchapter G. BUSINESS ENTERPRISES OF TEXAS

40 TAC §§106.1201, 106.1203, 106.1205, 106.1207, 106.1211, 106.1213, 106.1215, 106.1217, 106.1219, 106.1221, 106.1223, 106.1225, 106.1227, 106.1229, 106.1231, 106.1233

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

§106.1201.Legal Authority.

(a) Program name. The Department of Assistive and Rehabilitative Services/Division for Blind Services (DARS/DBS) [ ~~Commission~~ ] shall carry out its responsibilities for licensing blind persons to operate vending facilities on state, federal, and other property through its state program entitled Business Enterprises of Texas, formerly known as Business Enterprises Program. Any references still in existence to Business Enterprises Program shall mean Business Enterprises of Texas.

(b) Federal authority. The DARS/DBS [ ~~Commission~~ ] operates Business Enterprises of Texas under the authority of the Randolph-Sheppard Act (20 U.S.C. §107 et seq.) and implementing regulations (34 CFR §395.1 et seq.).

(c) State authority. The DARS/DBS [ ~~Commission~~ ] operates Business Enterprises of Texas under the authority of Texas Human Resources Code, Title 5, Chapter 94, and is authorized in §94.016 to administer BET in accordance with the provisions of the Randolph-Sheppard Act.

(d) Statutory References. Unless expressly provided otherwise, a reference to any portion of a statute, rule, or regulation applies to all reenactments, revisions, or amendments of the statute, rule, or regulation.

§106.1203.Definitions.

The following words and terms, when used in this subchapter [ ~~these rules~~ ], shall have the following meanings, unless the context clearly indicates otherwise. Unless expressly provided otherwise, words in the present or past tense include the future tense, and the singular includes the plural and the plural includes the singular. The masculine gender includes the feminine and neuter genders.

(1) Act--Randolph-Sheppard Act (20 U.S.C, Ch. 6A, §107 et seq.).

(2) Application--The "BET Facility Assignment Application" form used by licensees to apply for a facility.

(3) BET--Business Enterprises of Texas.

(4) BET Assignment--The document that sets forth the terms and conditions for management of a BET facility by the individual named as manager.

(5) BET director--The administrator of Business Enterprises of Texas; or, if there be no person in that capacity, the person designated by the Assistant Commissioner for the Division for Blind Services [ ~~executive director~~ ] to perform that function; or if there be none, the Assistant Commissioner [ ~~executive director~~ ].

(6) BET facility--Automatic vending machines, cafeterias, snack bars, cart service, shelters, counters and such other appropriate auxiliary equipment which may be operated by BET managers and which is necessary for the sale of newspapers, periodicals, confections, tobacco products, foods, beverages and other articles or services dispensed automatically or manually and prepared on or off the premises in accordance with all applicable health laws, and including the vending or exchange of tickets for any lottery authorized by state law.

(7) BET manual--"Business Enterprises of Texas Manual of Operations," which contains these rules adopted by the DARS/DBS [ ~~Commission's board~~ ] and accordant instructions and procedures by which BET facilities are to be managed.

(8) Blind (person who is)--A person whose central visual acuity does not exceed 20/200 in the better eye with correcting lenses or whose visual acuity, if better than 20/200, is accompanied by a limit to the field of vision in the better eye to such a degree that its widest diameter subtends an angle of no greater than 20 degrees.

~~[ ~~(9)~~ Board--The Commission's governing body appointed pursuant to state law.]~~

(9) [ ~~(10)~~ ] Business day--A day on which state agencies are officially required to be open during their normal business hours.

(10) [ ~~(11)~~ ] DARS/DBS--Department of Assistive and Rehabilitative Services/Division for Blind Services. [ ~~Commission--Texas Commission for the Blind.~~ ]

(11) [ ~~(12)~~ ] DARS/DBS [ ~~Commission~~ ] staff--Employees of the DARS/DBS [ ~~Commission~~ ] who have been delegated the authority by the Assistant Commissioner [ ~~executive director~~ ] or his designee to take an action contained in these policies.

(12) [ ~~(13)~~ ] ECM--Elected Committee of Managers.

(13) [ ~~(14)~~ ] Assistant Commissioner--Assistant Commissioner for the Division for Blind Services. [ ~~Executive Director--The Commission's chief executive officer.~~ ]

(14) [ ~~(15)~~ ] Expendables--Items that require a low capital outlay and have a short life expectancy, such as, by way of illustration and not limitation, smallwares, thermometers, china, glass, silverware, sugar and napkin dispensers, salt and pepper shakers, serving trays, mops, brooms, knives, spreaders, serving spoons, and ladles.

(15) [ ~~(16)~~ ] Individual with a significant disability--An individual who has a severe physical or mental impairment that seriously limits one or more functional capacities (such as mobility or communication).

(16) [ ~~(17)~~ ] Initial assignment--The first BET facility to which a manager is assigned after being licensed.

(17) [ ~~(18)~~ ] Level 1 facility--A BET facility which in the prior year generated a net income after set-aside fees equal to or less than 170% of the median net income after set-aside fees of all BET managers for the prior year or, in the case of a new BET facility, is reasonably expected to generate said income.

(18) [ ~~(19)~~ ] Level 2 facility--A BET facility which in the prior year generated a net income after set-aside fees greater than 170% of the median net income after set-aside fees of all BET managers for the prior year or, in the case of a new BET facility, is reasonably expected to generate said income.

(19) [ ~~(20)~~ ] Manager--A licensee who is operating a BET facility, and which shall have the same meaning assigned to "vendor" in 34 CFR 395.1.

(20) [ ~~(21)~~ ] Net sales--All sales, excluding sales tax.

(21) [ ~~(22)~~ ] Other income--Money received by a manager from sources other than direct sales, such as vending commissions or subsidies.

(22) [ ~~(23)~~ ] State property--Lands and buildings owned, leased, or otherwise controlled by the State of Texas; and equipment and facilities purchased and/or owned by the State of Texas.

(23) [ ~~(24)~~ ] Vending machine--For the purpose of assigning vending machine income, a coin or currency operated machine that dispenses articles or services, except those machines operated by the United States Postal Service for the sale of postage stamps or other postal products and services. Machines providing services of a recreational nature and telephones shall not be considered to be vending machines.

(24) [ ~~(25)~~ ] Proper and authorized instruction by DARS/DBS [ ~~Commission~~ ] staff--Instructions in accordance with applicable statutes and program rules, regulations, and procedures.

(25) [ ~~(26)~~ ] Licensee--An individual who has been licensed by the DARS/DBS [ ~~Commission~~ ] as qualified to apply for and operate a BET facility, and which shall have the same meaning assigned to "blind licensee" in 34 CFR 395.1.

§106.1205.General Policies.

(a) Objectives. The objectives of Business Enterprises of Texas shall be:

(1) to provide employment opportunities for qualified individuals; and

(2) to administer a continuing process of career development for managers which encourages them to move into the private sector of business.

(b) Relationship of BET to Vocational Rehabilitation Program. The intent of Business Enterprises of Texas, as authorized in the Randolph-Sheppard Act and the Texas Human Resources Code, is to stimulate and enlarge the economic opportunities for the citizens of Texas who are blind or visually impaired by establishing a vending facility program in which such persons who are in need of employment are given preference in the operation of vending facilities selected and installed by the DARS/DBS [ ~~Commission~~ ]. The DARS/DBS [ ~~Commission~~ ] is required to administer BET in accordance with the DARS/DBS [ ~~Commission's~~ ] vocational rehabilitation objectives. Therefore, a consumer receiving services from the Vocational Rehabilitation Program whose employment goal is to be a licensed manager shall have reached an employment outcome as that term is used in the Rehabilitation Act of 1973 when the consumer is licensed by the DARS/DBS [ ~~Commission~~ ] and is managing a BET facility. The licensed manager shall not be considered an employee of the DARS/DBS [ ~~Commission~~ ], state, or federal government.

(c) Full-time employment. Managing a BET facility shall constitute full-time employment. Full-time shall mean being actively engaged in the management of a BET facility for the number of hours necessary to achieve satisfactory operation of the facility. The manager shall be available for necessary visits by DARS/DBS [ ~~Commission~~ ] staff to allow inspection, advice, and consultation as may be required to ensure satisfactory operation. Management means the personal supervision of the day-to-day operation of the assigned BET facility by the assigned manager.

(d) Subcontracting. The management of a BET facility shall not be subcontracted except for temporary periods of time approved by the DARS/DBS [ ~~Commission~~ ] or in those circumstances in which the DARS/DBS [ ~~Commission~~ ] deems that subcontracting the operation of some parts of the facility are in the best interest of BET. In all events, subcontracting shall require the prior written consent of the DARS/DBS [ ~~Commission~~ ]. This subsection shall not affect subcontracts in existence on the effective date of this subsection. This subsection does not apply to equipment or machines allowed to be placed within the facility and not owned by or arranged for by the DARS/DBS [ ~~Commission~~ ].

(e) Availability of funds. The administration of BET and the implementation of these policies are contingent upon the availability of funds for the purposes stated herein.

(f) BET manual. All BET policies adopted by DARS/DBS [ ~~the board~~ ] shall be included in the BET manual. The BET director shall ensure that each licensee is provided with a copy of the manual and any revisions thereto. The licensee shall be responsible for reading the manual and acknowledging in writing that he or she has read and understands its contents. The BET director shall insure that the BET manual contains procedures whereby licensees may obtain assistance in understanding BET policies and procedures.

(g) Accessibility of BET materials. All information produced by and provided to licensees by the DARS/DBS [ ~~Commission~~ ] shall be in an accessible format. When possible, materials will be sent in the format requested by the licensee.

(h) Nondiscrimination.

(1) VR and BET participants. The DARS/DBS [ ~~Commission~~ ] shall not discriminate against any blind person who is participating in or who may wish to participate in Business Enterprises of Texas on the basis of sex, age, religion, color, creed, national origin, political affiliation, or physical or mental impairment, insofar as such impairment does not preclude satisfactory performance.

(2) BET facilities. Managers shall operate BET facilities without discriminating against any present or prospective supplier, customer, employee, or other individual who might come into contact with the facility on the basis of sex, age, religion, color, creed, national origin, political affiliation or physical or mental impairment.

(i) Emergencies. The BET director is authorized to expend funds on an emergency basis for the purpose of protecting the state's investment in a BET facility not to exceed $15,000 in a fiscal year or $2,500 per facility incident.

(j) Temporary management. From time to time it becomes necessary to designate a temporary manager to an unassigned facility to ensure uninterrupted service to the host and customers. Temporary assignments shall be for the period stated in the assignment document. Subsequent to the expiration of the timeframe stated in the assignment, the BET director shall review the temporary assignment every 90 days to determine the need for continuation of the temporary assignment. The temporary arrangement shall terminate when a new manager is assigned to the facility. The DARS/DBS [ ~~Commission~~ ] shall choose temporary managers from licensees; if a licensee is not available, the DARS/DBS [ ~~Commission~~ ] may contract with a private entity. Before a licensee is offered a temporary opportunity, the regional BET staff and local ECM representative shall discuss which licensee in the geographical location has the requisite skills to successfully manage the facility temporarily. Preference shall be given to temporarily improving the income to lower income managers when more than one individual is qualified.

§106.1207.BET Administration.

(a) The Assistant Commissioner of the Division for Blind Services is authorized to: [ Executive director. The executive director (subject to Subchapter A, Chapter 531, Government Code, pertaining to the authority of the Commissioner of the Health and Human Services Commission over certain agency functions) is authorized to: ]

(1) Supervise DARS/DBS; [ ~~establish personnel policies for Commission personnel employed in BET;~~ ]

(2) establish BET plans, which at a minimum shall provide for all services, assistance, training, supervision, and planning necessary for the implementation and administration of BET; and

(3) delegate authority to implement these rules to the BET director.

(b) BET director. In addition to the responsibilities delegated to the BET director by the Assistant Commissioner [ ~~executive director~~ ], the BET director shall be responsible for:

(1) implementing BET personnel policies and development plans; and

(2) disseminating the information developed by the Assistant Commissioner [ ~~executive director~~ ] related to BET plans and policies to all licensees.

(1) If the DARS/DBS [ ~~Commission~~ ] determines a consultant is necessary to assist a manager or protect the interests of the agency, the DARS/DBS [ ~~Commission~~ ] shall contract with a consultant and may pay for the consultant out of the facility revenues. The DARS/DBS [ ~~Commission~~ ] shall not contract with a consultant when it possesses the expertise and staffing level to provide the consulting services. The DARS/DBS [ ~~Commission~~ ] shall not pay for a consultant with facility revenues if the manager qualifies for post-employment services as that term is defined in The Rehabilitation Act of 1973, as amended.

(2) If the DARS/DBS [ ~~Commission~~ ] determines a consultant is necessary to assist a manager who is currently in a facility, the BET director shall consult with the manager prior to contracting with a consultant. The final authority, however, for contracting with a consultant shall rest with the DARS/DBS [ ~~Commission~~ ].

(3) All consultant contracts entered into by the DARS/DBS [ ~~Commission~~ ] for the provision of support and mentoring services to the manager shall not exceed three years in duration, provided, however, that the contract may be extended for additional periods not to exceed one year each. No contract shall be extended until the manager has been consulted. The final discretion to extend the contract shall rest with the DARS/DBS [ ~~Commission~~ ].

(4) If the DARS/DBS [ ~~Commission~~ ] determines it necessary to contract with a consultant to protect the interests of the DARS/DBS [ ~~Commission~~ ], the DARS/DBS [ ~~Commission~~ ] shall enter into a separate agreement for that purpose with such terms and conditions as the DARS/DBS [ ~~Commission~~ ] may deem appropriate.

§106.1211.BET Licenses.

(a) Natural persons. Licenses to manage a BET facility shall be issued only to natural persons.

(b) Prerequisites. No person may be licensed until such person has satisfactorily completed all required BET training and otherwise continues to satisfy the criteria for entry into BET.

(c) Issuance. A license issued by the DARS/DBS [ ~~Commission~~ ] shall bear the name of the licensee, date of issue, and contain such other information as may be deemed to be appropriate from time to time by the Assistant Commissioner [ ~~executive director~~ ]. The license shall be signed by the Assistant Commissioner [ ~~executive director~~ ] on behalf of the DARS/DBS [ ~~Commission~~ ] and State of Texas.

(d) Display. The license or a copy of the license shall be displayed prominently in each location of the enterprise to which the manager is assigned.

(e) Property right. A license shall not create any property right in the licensee to whom it is issued and shall be deemed only to inform the public and other interested parties that the licensee has successfully completed BET training and is qualified and authorized to operate a BET facility.

(f) Transferability. A license is not transferable.

(g) Term. A license issued by the DARS/DBS [ ~~Commission~~ ] shall be valid for an indefinite period, subject, however, to termination, revocation, or suspension pursuant to conditions specified in these policies pertaining to termination of license for reasons other than unsatisfactory performance and administrative action based on unsatisfactory performance.

§106.1213.Initial and Career Advancement Assignment Procedures.

(a) Purpose. This section defines the process for the initial and career advancement assignments of managers. It is the goal of the process to provide a fair, unbiased, and impartial process for selection, transfer, and promotion.

(b) Initial assignment. Upon successful completion of BET training, the initial assignment for a newly-licensed licensee shall be made by the BET director. The initial assignment shall be for a minimum of 12 months. The BET director shall make the assignment based on the following:

(1) availability of a Level 1 facility;

(2) recommendations from the BET training specialist and the ECM chairperson;

(3) licensee's training records;

(4) licensee's geographical concerns; and

(5) any other circumstances on a case-by-case basis.

(1) Availability. All career advancement opportunities are dependent upon the availability of BET facilities. No facility with a projected annual income equal to the annual median income level of all managers or $30,000, whichever is the greater after set-aside fees, shall be used for an initial assignment unless it has first been advertised and made available to all licensees in the BET Program and no one has been assigned to such facility as a result of the advertising process.

(2) Notice. As BET facilities become available and ready for permanent assignment, written notice of such availability shall be given to all licensees within 30 business days.

(3) On-site visits. An advertised facility shall be available for onsite visits upon reasonable notice by applicants.

(4) Eligibility. To apply for an available facility, a licensee must meet the following requirements:

(A) The licensee must have successfully managed a BET facility for a minimum of one year.

(B) The licensee must have been current on all accounts payable for the preceding 12 months prior to the date of the facility announcement.

(D) The licensee must meet eligibility requirements of the facility's host organization.

(E) The licensee must not have submitted two or more insufficient fund checks to the DARS/DBS [ ~~Commission~~ ] within the 12 months prior to the date of the facility announcement.

(F) The licensee must not have submitted two or more late reports within the 12 months prior to the date of the facility announcement.

(G) If unassigned, the licensee must have fulfilled all resignation requirements in the licensee's last facility or be displaced and eligible to apply for a facility.

(H) The manager must have an inventory of merchandise and expendables in the manager's current facility as the DARS/DBS [ ~~Commission~~ ] has determined sufficient for its satisfactory operation.

(I) The licensee must satisfy the DARS/DBS [ ~~Commission~~ ] that he can acquire the merchandise and expendables required for the available facility.

(J) A licensee who has been placed on probation is not eligible for promotion and transfer for 30 days following release from probation.

(K) A licensee who has been placed on probation twice within a twelve-month period is not eligible for promotion or transfer for six months following release from probation.

(L) A licensee who has been placed on probation three times within a two-year period is not eligible for promotion or transfer for one year following release from probation.

(5) BET application deadline. A licensee may apply for an available facility by submitting an application not later than the 12th business day (exclusive of date of mailing) after the date the facility notice was mailed. The submission date shall be:

(A) the date the application is delivered to the DARS/DBS [ ~~Commission~~ ]; or

(B) 3 days after deposit of the application in the United States mail, whichever is earlier; or

(6) BET application contents. A copy of the current form of the application shall be included in the BET manual. The substance of the application form shall not be modified except by action of the DARS/DBS [ ~~Commission's board~~ ]. Modifications shall be provided to all licensees prior to their effective date. Upon request by the manager and prior to the submission deadline, assistance is available from the local BET staff and ECM representative in completing the BET Application Form.

(7) Preliminary review of applications. DARS/DBS [ ~~Commission~~ ] staff and the ECM representative in each geographic area in which the applying licensees are currently located shall review all applications from their areas and shall verify the applicant's eligibility. In the event an ECM representative is an applicant for an available BET facility, the ECM chairperson shall appoint another ECM member for the review. Completed applications shall then be forwarded to the BET director who shall provide copies to the ECM and DARS/DBS [ ~~Commission~~ ] staff in the area in which the available facility is located.

(8) Level 1 assignments. Assignments to Level 1 facilities shall be made by the BET director after reviewing the recommendations and assessments of all applicants conducted by the ECM representative and DARS/DBS [ ~~Commission~~ ] staff for the regions in which the available facilities are located.

(9) Level 2 assignments. For Level 2 assignments, the following additional procedures shall apply:

(A) Business plan. An applicant must submit a business plan to the BET director no later than the 20th business day after the postmark date on the notice of facility availability. Upon request by an applicant, the DARS/DBS [ ~~Commission~~ ] staff in the area in which the available facility is located shall provide a standard packet of information to the applicant containing information necessary to prepare the business plan. The DARS/DBS [ ~~Commission~~ ] staff shall deliver the packet to the applicant no later than the 3rd business day after receiving a request.

(B) Establishment of pool of impartial and qualified individuals. The DARS/DBS [ ~~Commission~~ ] shall establish and maintain a pool of qualified individuals. The pool members shall be individuals who:

(i) have no personal, professional, or financial interest that would be in conflict with the objectivity of the individual;

(ii) neither have nor have had any association with the DARS/DBS [ ~~Commission~~ ] or Business Enterprises of Texas prior to being considered as a pool member; and

(iii) have at least 5 years experience in business at a managerial or executive level, including experience in budget preparation and administration, personnel supervision or management; and administration of business plans or equivalents to business plans in the sector of business in which the person has experience.

(C) Evaluation of business plans. All business plans shall be reviewed and evaluated by an individual chosen at random from the pool of impartial and qualified individuals. Business plans shall be evaluated and scored based on a scoring system of 100 points. The evaluations and scores shall then be forwarded to the BET director for consideration by the selection panel in the selection process.

(D) Selection panel. A selection panel consisting of one representative from the ECM, one DARS/DBS [ ~~Commission~~ ] staff member, and one individual from the pool of impartial and qualified individuals shall be chosen by means of a computer program that selects randomly from a database. The selection of each panel member shall be from among all persons within their respective categories, except that the impartial member may not be the individual who evaluated the business plans. If the member of a category of panel members who is selected is unable or refuses to serve, the BET director shall use the same method of random selection until three members are chosen.

(E) Presiding officer. The impartial panel member shall serve as the presiding officer of the selection panel.

(F) Interview notices. Applicants shall be notified by first class U.S. Mail of the date, place and time of the selection panel interview no fewer than 10 business days prior to the convening of the selection panel.

(G) Selection panel materials. Completed applications, business plans, and each applicant's most recent performance evaluation shall be provided to the selection panel members no fewer than 5 business days prior to the date the selection panel is to convene.

(H) Duties of selection panel. The selection panel shall review the documents provided and interview the applicants. The panel shall prepare a tabulation sheet for each manager on which the member will enter the business plan score and performance evaluation score previously received by the applicant. A third score shall be awarded by each panel member for the interview performance of the applicant. Each interview shall be rated on a maximum score of 100 based on such areas as the quality of the applicant's presentation, knowledge of the submitted business plan, and preparation for the assignment. Each applicant shall be interviewed on the same areas and given a similar amount of time to present their case. While questions must necessarily be tailored to each individual's business plan, presentation, and knowledge, the panel should strive to conduct the interviews as similarly as possible. The selection panel shall then rank the top three applicants. An applicant's ranking shall be determined after weighting each applicant's business plan score by 20%, weighting each applicant's most recent performance evaluation by 20%, and weighting the average interview score received by panel members by 60%. In the event of a tie in scores, the panel will award one point to whichever applicant has the greater length of accumulated service as an assigned manager in a BET facility according to BET records, thereby breaking the tie. The selections shall be transmitted to the BET director, who shall in turn notify the highest ranked applicant of the decision of the selection panel. The available facility shall be offered to the applicants in order of ranking.

(I) Reports of improper contact. Members of the selection panel must report alleged improper contacts to the BET director or the Assistant Commissioner [ ~~executive director~~ ]. Improper contact is defined as [ ~~any~~ ] communication with a member of the selection panel for the purpose of improperly influencing or manipulating[ ~~, directly or indirectly,~~ ] the selection of an applicant for the facility being considered for assignment , by offering a thing or act of value, including promises of future benefit or by threat . Nothing contained in this section, however, shall be deemed to prohibit any licensee from endorsing or supporting any candidate for selection by furnishing a letter or other document to that effect to be included with the applying licensee's application. At the conclusion of the selection panel's responsibilities, each panel member shall be required to sign a statement certifying whether the member had, or had knowledge of, an improper contact during the selection proceedings.

(J) Process for investigating reports of improper contact. When alleged improper contact is reported, each applicant for the facility under consideration and the ECM Chairman shall be informed as to the occurrence of an alleged improper contact. The information provided to the applicants shall describe the nature of the alleged improper contact but shall not divulge the identities of any persons allegedly participating in such improper contact. Each applicant may make objection to continuation by the existing panel and request that a new panel be formed to select the manager for the available facility. The BET Director, upon the request of any applicant for the facility, shall determine if the improper contact is such as to require that the panel be disbanded and a new panel formed. In making that decision, the BET Director shall consider all relevant factors, including the objections, if any, of the applicants, to determine if the improper contact is likely to influence the decision of the selection panel. If the BET Director determines that the improper contact is likely to influence the selection process, the BET Director shall direct that the panel be disbanded and that a new panel be formed to consider the selection for the facility being considered. The BET Director shall inform all applicants of his decision to continue the selection process with the existing panel or to form a new panel and shall state the basis of the decision. The actions prescribed as a consequence of improper contact set forth in policies pertaining to administrative actions shall apply whether or not any improper contact results in the panel being disbanded.

(K) Exceptions to assignment and selection procedures. Unusual circumstances may require exceptions to assignment and selection procedures. Exceptions to these procedures shall be made only if the circumstance is not covered by assignment procedures and failure to react to the circumstance would be detrimental to BET or a licensee. Notwithstanding anything in this section, no exceptional procedure shall result in the removal of a manager from a facility except for reasons contained in policies pertaining to administrative actions. Assignment and selection decisions that are exceptions to these procedures shall be made by the BET director after discussing relevant information with the ECM chairperson and receiving the chairperson's recommendation. Should a decision contrary to the ECM chairperson's recommendation be made, the BET director shall provide a written explanation of the decision to the ECM chairperson.

§106.1215.Fixtures, Furnishings, and Equipment; Initial Inventory and Expendables.

(a) Survey. When a BET facility becomes available for assignment, DARS/DBS [ ~~Commission~~ ] staff shall conduct a survey of the site to determine the fixtures, furnishings, and equipment required to allow the facility to operate in accordance with projections by DARS/DBS [ ~~Commission~~ ] staff as to the potential for the facility. When such facility is an existing one, the survey shall consider the need for replacement or repair of fixtures, furnishings, and equipment.

(b) Facility plan. DARS/DBS [ ~~Commission~~ ] staff shall prepare a detailed schedule of the requirements for fixtures, furnishings, and equipment for the facility, including specifications for each item required and a site plan of the facility depicting the placement of the fixtures, furnishings, and equipment within the facility.

(c) Acquisition, placement, and installation. When satisfied as to the fixtures, furnishings, and equipment required for the facility, DARS/DBS [ ~~Commission~~ ] staff shall cause the necessary fixtures, furnishings, and equipment to be purchased or otherwise acquired and placed and/or installed in or upon the facility in accordance with the approved plans.

(d) Ownership.

(1) All state fixtures, furnishings, and equipment within the facility shall at all times remain the property of the State of Texas. Their use by the facility manager shall be as a licensee only.

(2) The DARS/DBS [ ~~Commission~~ ] shall have the sole authority to direct, control, transfer, and dispose of such fixtures, furnishings, and equipment as it determines to be appropriate and necessary.

(e) Modifications. No modifications or alterations shall be made to state-owned fixtures, furnishings, and equipment by any person, firm, or entity without the express prior written approval of the DARS/DBS [ ~~Commission~~ ], which shall be granted or not granted solely at the discretion of the DARS/DBS [ ~~Commission~~ ].

(f) Upkeep and maintenance.

(1) The manager assigned to a facility shall be provided with manuals, instructions, and guides in an accessible format to state-owned fixtures, furnishings, and equipment within the facility.

(2) It shall be the responsibility of the manager to keep DARS/DBS [ ~~Commission~~ ] fixtures, furnishings, and equipment in a clean and sanitary condition and to perform maintenance required or recommended by the manufacturers or vendors of the fixtures, furnishings, and equipment.

(3) The manager shall keep and maintain accurate records of all maintenance performed on DARS/DBS [ ~~Commission~~ ] fixtures, furnishings, and equipment. Any failure or refusal of the manager to perform the maintenance referred to herein shall result in the manager being required to reimburse the DARS/DBS [ ~~Commission~~ ] for any cost or expense resulting from such failure or refusal.

(g) Repairs and replacements.

(1) The DARS/DBS [ ~~Commission~~ ] shall be responsible for all necessary repairs of any of the state-owned fixtures, furnishings, and equipment located within the facility except for repairs necessitated by the negligence, abuse, or misuse of the fixtures, furnishings, or equipment by the manager or the manager's employees. The cost of repairs necessitated by negligence, abuse, or misuse by the manager or the manager's employees shall be the sole responsibility of the manager. Failure to make such repairs shall result in administrative action pursuant to these rules.

(2) The BET director shall establish and implement procedures for effecting the timely necessary repairs and for the payment for such services. There shall be included in these procedures specific procedures for initiating repairs by the manager and a list of approved vendors for repairs, which shall be provided to each manager as published and as revised from time to time.

(3) Under no circumstances is a manager authorized to have the cost of repairs charged to the DARS/DBS [ ~~Commission~~ ] or have repairs made by anyone other than approved vendors unless specific authority to do so has been given to the manager in writing by DARS/DBS [ ~~Commission~~ ] staff. Each vendor included in the approved list of vendors for repairs shall be informed by DARS/DBS [ ~~Commission~~ ] staff of this prohibition and of the procedures for authorized repairs and for payment for services.

(4) DARS/DBS [ ~~Commission~~ ] staff on their own initiative or upon request by a manager shall determine the need for replacement of any fixtures, furnishings, or equipment. If such need is determined, DARS/DBS [ ~~Commission~~ ] staff shall report the need to the BET director. If authorized by the BET director, replacement fixtures, furnishings, or equipment shall be acquired from available BET funds.

(5) Fixtures, furnishings, and equipment shall not include expendables. Each manager of a facility shall be responsible for replacing all such items with items of comparable quality as those being replaced and originally furnished by the DARS/DBS [ ~~Commission~~ ].

(h) Initial inventory of merchandise and expendables for newly-licensed managers. The DARS/DBS [ ~~Commission~~ ] shall furnish without charge the initial inventory of merchandise and expendables for the initial assignment of a newly-licensed licensee. The initial inventory of merchandise and expendables shall be sufficient, as projected by the DARS/DBS [ ~~Commission~~ ], to provide the manager with merchandise and expendables for 30 days.

(i) Subsequent inventory of merchandise and expendables.

(1) The manager shall maintain an inventory of merchandise and expendables in the same quantity as the initial merchandise and expendables transferred to the manager upon assignment to the facility. If the DARS/DBS [ ~~Commission~~ ] determines that changed circumstances require a different amount of merchandise and expendables, the DARS/DBS [ ~~Commission~~ ] shall communicate in writing to the manager the new amount of merchandise and expendables. If a new amount of merchandise and expendables is necessary to provide for the satisfactory operation of the facility, that new amount of inventory must be maintained by the manager.

(2) Managers assigned to any facility other than their initial assignment in Texas shall acquire the merchandise and expendables as determined by the DARS/DBS [ ~~Commission~~ ] to be sufficient to satisfactorily operate the facility. To effectively expedite the changeover in facilities, when a facility is already stocked with merchandise and expendables, the existing stock shall become part of the required inventory stock level of the incoming manager. The amount owed by the incoming manager for the existing stock shall be the amount agreed to by the affected parties. If the existing inventory is the property of the state, the amount owed by the incoming manager shall be the amount paid with state funds.

(j) Purchases on credit. During the first three years of being an active manager in the Program, managers must notify the DARS/DBS [ ~~Commission~~ ] in advance of any purchase of merchandise and expendables on credit.

(k) Obtaining an advance from the DARS/DBS [ ~~Commission~~ ] for initial inventory. Managers may apply to the DARS/DBS [ ~~Commission~~ ] for an advance to purchase an initial inventory of merchandise and expendables. The Manager must satisfy any advance received from the DARS/DBS [ ~~Commission~~ ] to purchase merchandise on subsequent assignments within a 12-month period and make monthly payments in the amount established by the DARS/DBS [ ~~Commission~~ ]. The granting of an advance is discretionary and may be granted only under the following conditions:

(1) The manager must satisfy the DARS/DBS [ ~~Commission~~ ] in writing as to why the advance is needed and why the funds are not available from other sources.

(2) Before an advance is granted by the DARS/DBS [ ~~Commission~~ ] pursuant to this section, the manager must submit evidence satisfactory to the DARS/DBS [ ~~Commission~~ ] that the financing has been sought from at least two commercial financial institutions, such as, by way of example, the Small Business Administration, banks, savings and loans, credit unions, or like institutions.

(3) The manager shall satisfy the DARS/DBS [ ~~Commission~~ ] as to the manager's ability to repay the advance within 12 months.

(4) Managers with outstanding balances on advances are not eligible for transfer to another assignment.

(l) Transfer of fixtures, furnishings, equipment, and inventory of merchandise and expendable Items. When a manager is assigned to an existing BET facility, the responsibility for the fixtures, furnishings, and equipment of that facility, as well as its inventory of merchandise and expendable items, shall be transferred to the incoming manager. The BET director shall develop and implement procedures for effecting such transfers to assure that both the incoming and outgoing managers have full knowledge of the nature and condition of the items being transferred.

§106.1217.Set-Aside Fees.

(a) Purpose. It is the policy of the Department of Assistive and Rehabilitative Services/Division for Blind Services to require from managers the payment of a set-aside fee based on the monthly net proceeds of their BET facilities. The purpose of requiring such payment is:

(1) to promote to the greatest possible extent the concept of a manager being an independent business person;

(2) to cause BET to be to the greatest extent possible, with due regard to other considerations, self-supporting;

(3) to encourage and stimulate growth in BET; and

(4) to provide incentives for the increased employment opportunities for blind Texans.

(b) Use of funds. To the extent permitted or required by applicable laws, rules, and regulations, the funds collected as set-aside fees shall be used by the Department of Assistive and Rehabilitative Services/Division for Blind Services for the following purposes:

(1) maintenance and replacement of equipment for use in BET;

(2) purchase of new equipment for use in BET;

(3) management services;

(4) assuring a fair minimum return to managers; and

(5) the establishment and maintenance of retirement or pension funds, health insurance contributions, and provision for paid sick leave and vacation time if it is so determined by a majority vote of managers assigned to a facility, after the Department of Assistive and Rehabilitative Services/Division for Blind Services provides to each such manager information on all matters relevant to such proposed purposes.

(1) Net proceeds is the amount remaining from the sale of merchandise of a BET facility, all vending machine income, and other income accruing to the manager from the facility after deducting the reasonable and necessary cost of such sale, but excluding set-aside charges required to be paid by the manager. Net sales are all sales, excluding sales tax. The manager may not remove any items from the inventory or other stock items of the facility unless the manager pays for those items at the actual cost basis.

(2) Costs of sales that may be deducted from net sales to calculate net proceeds in a reporting period shall be limited to:

(A) cost of merchandise sold;

(B) wages paid to employees;

(D) the following reasonable miscellaneous operating expenses that are directly related to the operation of the BET facility:

(i) discretionary expenses, not to exceed 1.5% of the monthly net sales, or $150, whichever is greater;

(ii) rent and utilities authorized in the permit or contract;

(iii) business taxes, licenses, and permits;

(iv) telecommunication services;

(v) liability, property damage, and fire insurance;

(vi) Worker's Compensation insurance;

(vii) employee group hospitalization/health insurance;

(viii) employee retirement contributions (the plans must be IRS-approved and not for the manager);

(ix) janitorial services, supplies, and equipment;

(x) bookkeeping and accounting services;

(xi) trash removal and disposal services;

(xii) service contracts on file with the Department of Assistive and Rehabilitative Services/Division for Blind Services;

(xiii) legal fees directly related to the operation of the facility (legal fees directly or indirectly related to actions against governmental entities are not deductible);

(xiv) medical expenses directly related to accidents that occur to employees at the facility, not to exceed $500;

(xv) purchase of personally owned or leased equipment that has been approved by the Department of Assistive and Rehabilitative Services/Division for Blind Services for placement in the facility;

(xvi) repairs and maintenance to personally owned or leased equipment that has been approved by the Department of Assistive and Rehabilitative Services/Division for Blind Services to be placed within the facility;

(xvii) consumable office supplies; [ ~~and~~ ]

(xviii) exterminator/pest control services ; and [ . ]

(xix) mileage expenses for vehicles required for the direct operation of vending facilities at the rate and method allowed by the Internal Revenue Service at the time the expenses are incurred.

(3) All reports by managers shall be accompanied by such supporting documents as may be required by the Department of Assistive and Rehabilitative Services/Division for Blind Services.

(d) Method of computing monthly set-aside fee. The monthly set-aside fee of each manager shall be a percentage of the amount that results from applying the schedule in paragraphs (1) - (5) of this subsection. The provisions relative to the percentage required to be paid as set-aside fees shall be reviewed by the Department of Assistive and Rehabilitative Services/Division for Blind Services with the active participation of the ECM at least annually during the first quarter of each state fiscal year . The review shall be for the purpose of determining whether the percentage needs to be adjusted in order to meet the needs of the program. The ECM shall be provided with all relevant financial and other information concerning the financial requirements of the program no fewer than 60 days prior to any review by the Department of Assistive and Rehabilitative Services/Division for Blind Services in which the percentage is to be considered. For the period from the effective date of this amended rule until the Department of Assistive and Rehabilitative Services/Division for Blind Services undertakes its first annual review of the set-aside fee, the percentage shall be 0 percent.

(1) On net proceeds of $1 to $999.99, the amount shall be 2% of the manager's net proceeds.

(2) On net proceeds of $1,000 to $1,499.99, the amount shall be 3% of the manager's net proceeds.

(3) On net proceeds of $1,500 to $1,999.99, the amount shall be 4% of the manager's net proceeds.

(4) On net proceeds of $2,000 to $5,999.99, the amount shall be $80 plus 18% of the manager's net proceeds over $2,000.

(5) On net proceeds of $6,000 or more, the amount shall be $800 plus 24% of the manager's net proceeds over $6,000.

(e) Payment of set-aside fee. The set-aside fee shall be submitted with the manager's monthly statement of facility operations. The manager shall use "BET Monthly Facility Report, BE-117," to report monthly activities. The BET director shall develop and implement procedures for the preparation and submittal of monthly statements.

(f) Adjustments to monthly set-aside fee.

[ ~~(1)~~ When a "single point of contact" is required under the provisions of §106.1231 of this title, pertaining to establishing and closing facilities, the monthly set-aside payment for the contact manager shall be reduced by 3% for each manager represented.]

(1) [ ~~(2)~~ ] To encourage managers to hire individuals with significant disabilities, managers shall deduct from their set-aside payment up to 50% of the wages or salary paid to a blind or otherwise significantly disabled employee during any month up to an amount not to exceed 5% of the set-aside payment amount for that month. A manager may make this deduction for any number of employees who are individuals who are blind or otherwise significantly disabled so long as that deduction from the set-aside payment amount does not exceed 25% of the total set-aside payment due, or $1,250.00, whichever is less. The manager shall provide such documentation to the Department of Assistive and Rehabilitative Services/Division for Blind Services as required by the Department of Assistive and Rehabilitative Services/Division for Blind Services to verify such employment and the right to the reduction in set-aside fees. For the purposes of this paragraph, the term "blind or otherwise significantly disabled employee" does not include:

(A) the manager,

(B) a blind or otherwise significantly disabled person within the first degree of consanguinity or affinity to the manager, or

(C) a blind or otherwise significantly disabled person claimed as a dependent, either in whole or in part, on the manager's United States income tax return.

(2) [ ~~(3)~~ ] Any adjustments provided for in paragraph (1) [ ~~paragraphs (1) and (2)~~ ] of this subsection shall not apply for any month in which the set-aside fee is not paid in a timely manner.

(3) [ ~~(4)~~ ] To encourage managers to promptly file their monthly statement of facility operations and pay their monthly set-aside fee, managers shall have their monthly set-aside fee increased by 5% if either their monthly statement or the monthly set-aside fee is not timely received by the Department of Assistive and Rehabilitative Services/Division for Blind Services in accordance with BET procedures for their preparation and submittal. None of the terms of this rule shall ever be construed to create a contract to pay, as consideration for the use, forbearance, or detention of money, interest at a rate in excess of the maximum rate permitted by applicable laws. This adjustment to the set-aside fee is not imposed as interest, but if for any reason whatever this adjustment is considered to be interest, the Department of Assistive and Rehabilitative Services/Division for Blind Services shall refund to the manager any and all amounts as shall be necessary to cause the "interest" paid to produce a rate equal to the maximum rate permitted by applicable laws.

§106.1219.Duties and Responsibilities of Managers.

(a) Managers must comply with applicable law, these rules, written agreements with hosts, the BET Assignment, the requirements of the BET manual, and any proper and authorized instruction by DARS/DBS [ ~~Commission~~ ] staff.

(b) Managers must comply with procedures prescribed by the Comptroller of Public Accounts for the payment of sales taxes and provide evidence to the DARS/DBS [ ~~Commission~~ ] of timely sales tax remittances.

(c) Managers must not engage in conduct that demonstrably jeopardizes the DARS/DBS [ ~~Commission's~~ ] right, title, and interest in the BET facility, its equipment, or the lease or agreement with the property managers.

(d) Managers must maintain a professional appearance and act in a professional manner while managing a BET facility.

(e) Managers must open a commercial business account in which they maintain sufficient funds to operate the BET facility.

(f) Managers must make payments for insurance provided by the DARS/DBS [ ~~Texas Commission for the Blind~~ ]. The host shall be added as an insured when required.

(g) Managers must hire sufficient employees to insure the efficient operation of the BET facility and to provide adequate service to customers.

(h) Managers must be actively engaged in the management of a BET facility the number of hours necessary to achieve satisfactory operation of the facility. With prior notice from the DARS/DBS [ ~~Commission~~ ], managers shall be available for all necessary visits to the facilities for the purpose of advice, consultation, and inspections.

(i) Managers must take appropriate actions to correct deficiencies noted on BET facility audits or reviews within 20 business days.

(j) Managers must provide satisfactory service to the BET facility host and customers.

(k) Managers shall notify the DARS/DBS [ ~~Commission~~ ] in advance if they intend to be absent from their assigned facility for more than two days.

(l) Managers must provide the DARS/DBS [ ~~Commission~~ ] with the following information and must notify the DARS/DBS [ ~~Commission~~ ] of any changes to any item no later than 10 business days after a change occurs:

(1) the BET facility telephone number;

(2) an address to which BET correspondence is to be sent;

(3) a phone number for use in emergencies; and

(4) the manager's preferred reading format.

(m) Managers are accountable to the DARS/DBS [ ~~Commission~~ ] for the proceeds of the business.

(n) Managers must keep all records supporting the monthly facility report for a period of three calendar years.

(o) Managers shall report the actual value of resale inventory by taking a physical count in the facility each month and submit a written inventory quarterly (March, June, September, and December) with the monthly facility report.

(p) Managers, upon request by the DARS/DBS [ ~~Commission~~ ], must make available all records pertinent to the facilities to which they have been assigned for the purpose of audit or review.

§106.1221.Responsibilities of the Department of Assistive and Rehabilitative Services/Division for Blind Services [ ~~Commission~~ ].

(a) Management services. The DARS/DBS [ ~~Commission~~ ] shall provide each manager with regular and systematic management services, which shall, at a minimum, include:

(1) explanations of the DARS/DBS [ ~~Commission's~~ ] rules, procedures, policies, and standards;

(2) recommendations on ways in which the facility may be made more profitable for the manager;

(3) techniques to develop positive relationships with customers, assistants and management of the host organization;

(4) possible solutions to problems recognized by the manager or brought to the manager's attention by DARS/DBS [ ~~Commission~~ ] staff or the facility host;

(5) continuing education and training courses and opportunities for managers designed to enhance skills, productivity and profitability; and

(6) information about laws, rules, and regulations affecting the operation of a BET facility.

(b) Training. The DARS/DBS [ ~~Commission~~ ] shall assist the ECM to conduct a special training seminar each year for all licensees to inform them of new BET developments and to provide instruction on new, relevant topics to enhance upward mobility.

(c) Facility operating conditions. The DARS/DBS [ ~~Commission~~ ] shall establish the conditions for operation of a BET facility in accordance with these rules and any requirements of the host. The operating conditions shall include, among other things, pricing requirements, hours of operation, and menu items or product lines. The DARS/DBS [ ~~Commission~~ ] may revise the operating conditions from time to time as market conditions warrant. The final authority and ultimate responsibility for determining the prices to be charged for products sold through BET facilities shall rest with the DARS/DBS [ ~~Commission~~ ].

(d) BET financial data. Upon request, the DARS/DBS [ ~~Commission~~ ] shall provide licensees with access to BET financial data. Also upon request, the DARS/DBS [ ~~Commission~~ ] staff shall provide assistance to the licensee in interpreting the data.

(e) Inventory payment. When a manager leaves the manager's initial assignment, the DARS/DBS [ ~~Commission~~ ] shall pay the manager or the manager's heirs the value of the usable stock and supplies above the amount provided to the manager upon initial assignment.

§106.1223.BET Elected Committee of Managers.

(a) Authority. The Elected Committee of Managers (ECM) is created and shall operate pursuant to Section 107b-1 of the Act.

(b) Relationship to DARS/DBS [ ~~Commission~~ ]. The ECM shall be presumed as the sole representative of all licensees to the DARS/DBS [ ~~Commission~~ ] in matters contained in the Act and implementing regulations requiring the active participation of the ECM. Active participation means an ongoing process of good faith negotiations between the Elected Committee of Managers and the DARS/DBS [ ~~Commission~~ ] in the development of BET policies and procedures prior to implementation. The DARS/DBS [ ~~Commission~~ ] shall have the ultimate responsibility for the administration and operation of all aspects of BET and has final authority in decisions affecting BET.

(1) It shall be the sole responsibility of the licensees who elect the members of the ECM to insure that the persons elected represent all licensees.

(2) The ECM shall, in addition to all other matters set forth in these rules or by law or regulation affecting the administration of BET, act as advocates for licensees and shall strive to improve, expand, and make profitable and successful BET to the greatest possible extent for the mutual benefit of the DARS/DBS [ ~~Commission~~ ] and of the consumers who participate in the program.

(d) BET policies, rules, and procedures. In all matters related to policies and rules, the DARS/DBS [ ~~Commission's board~~ ] has the ultimate responsibility and the ultimate authority for their establishment and adoption. The ECM shall actively participate in the consideration of significant BET decisions and in deliberations of rules and policies affecting BET. Whenever DARS/DBS or the ECM wishes [ ~~a committee of the Commission's board is~~ ] to consider policies and/or rules related to BET DARS/DBS [ ~~for recommendation to the full board, the board's presiding officer~~ ] shall request that the [ ~~chairman of the~~ ] ECM participate in DARS/DBS rule drafting workshops to be conducted by the BET Director. The BET Director will work with the ECM in a good faith effort to come to agreement in matters related to rule and policy changes. [ the committee's discussions and deliberations as an ex officio member. When, in the discretion of the board's presiding officer, one or more additional members of the ECM would enhance the decision-making process by participating in the committee's actions, the ECM chairman shall be requested to appoint one or more other ECM members to participate. In all consideration and deliberations of such board committee any members of the ECM acting as ex officio members shall be entitled to fully participate in all discussions and deliberations to the same extent as are board committee members. ECM members participating in the committee process shall be bound by the rules and procedures by which the committee operates and by the management decisions made by the board committee chairman. The nature of the participation by the ECM members is advisory and no member of the ECM or any person who is not a member of the board may vote on any issue requiring a vote by the committee members. ]

(e) BET administrative decisions. In matters concerning the administration of BET, the ultimate responsibility and authority for making administrative decisions affecting BET is that of the DARS/DBS [ ~~Commission~~ ]. The BET director shall establish and maintain a continuing dialogue and exchange of information with the ECM as to decisions regarding the administration of BET and shall seek ECM input and advice on all decisions affecting the administration of the program. In cooperation with the ECM chairman and such other additional members of the ECM as the ECM chairman [ ~~BET director~~ ] deems necessary and appropriate, the BET director shall develop and implement methods of establishing and maintaining the dialogue and exchange of information. The methods developed shall be set out in detail in a written format and shall be included in the BET manual.

(f) Exclusions from participation. Neither the ECM nor any member thereof nor any manager is an employee, officer, or official of the State of Texas. Therefore, the ECM shall not participate in any decision-making process regarding personnel of the DARS/DBS [ ~~Commission~~ ], personnel policies, or personnel administration.

(g) Structure. The ECM shall, to the extent possible, be composed of licensees who are representative of all licensees in BET based on such factors as geography and facility type and size. Two representatives [ ~~One representative~~ ] shall be elected from each designated ECM district created by the DARS/DBS [ ~~Commission~~ ] with the active participation of the ECM and as may be revised or modified from time to time.

(h) Qualifications. The ECM shall establish qualifications for candidates, and the procedures for voting, tabulating, and announcing results. The DARS/DBS [ ~~Commission~~ ] shall provide such advice and counsel as may be requested by the ECM to accomplish all elections of representatives to the ECM.

(i) Term of office. The term of office for ECM members shall be two years beginning on January 1 following the election. Even- and odd-numbered districts shall alternate election years. Any ECM member elected to fill a vacancy shall serve the remainder of the unexpired term of the manager who vacated a position.

(j) Meetings. The ECM shall meet once during each calendar year for the purpose of electing officers and again as it may establish by bylaw. It shall be the duty of the ECM chairman to provide to the BET director with a written meeting agenda ten business days in advance of each meeting.

(k) Internal procedures of the ECM. The ECM shall establish bylaws to govern their internal operation and order of business and shall provide the DARS/DBS [ ~~Commission~~ ] with a copy.

(l) Travel expenses.

(1) Expenses for travel, meals, lodging, or other related expenses incurred by ECM representatives must be preapproved by the DARS/DBS [ ~~Commission~~ ].

(2) When representing a manager at a full evidentiary hearing, the ECM representative shall be reimbursed for travel, meals, and lodging at the rate allowed for travel by DARS/DBS [ ~~Commission~~ ] staff.

§106.1225.Termination of License for Reasons Other Than Unsatisfactory Performance.

(a) Causes for termination. The license of a licensee shall be terminated upon the occurrence of any one of the following:

(1) The licensee's visual acuity is improved by any means to the point at which the licensee no longer satisfies the definition of blind.

(2) The licensee becomes otherwise permanently disabled and as a result of such permanent disability is unable to perform the essential functions of operating and maintaining a BET facility. Permanently disabled is a condition that is medically documented and has existed or is expected to exist for at least twelve months. The determination of permanently disabled shall be made by the Assistant Commissioner [ ~~executive director~~ ] or his designee after review of medical documentation and other information relevant to the issue. Other information relevant to the issue shall include recommendations from DARS/DBS [ ~~Commission~~ ] staff and the ECM, pertinent information from the licensee's BET file or provided by the licensee, and reports of examinations or evaluations, if any, obtained by the DARS/DBS [ ~~Commission~~ ] and the licensee.

(3) The licensee is unassigned and has not applied for an assignment for a period of 12 consecutive months.

(b) Examination and evaluation. In any situation in which the vision or other disability of a licensee is at issue with respect to termination of a license, the DARS/DBS [ ~~Commission~~ ] or the licensee may require an examination or evaluation by professionals to determine whether the licensee is otherwise permanently disabled and as a result of such permanent disability is unable to perform the essential functions of operating and maintaining a BET facility. The reports of such professionals shall be furnished to the DARS/DBS [ ~~executive director~~ ] and licensee. Any failure of the licensee to participate in required examinations or evaluations shall be grounds for administrative action.

(c) Restoration of license. A license terminated under the provisions of this section may be restored at the discretion of the DARS/DBS [ ~~executive director~~ ] if the condition or conditions causing the termination have been satisfactorily resolved. In considering a decision whether to restore a license terminated according to this section, the Assistant Commissioner [ ~~executive director~~ ] shall consult with appropriate BET staff, the ECM chairperson, and any advocate for the licensee and shall consider all pertinent information and/or documentation provided by any of the persons described in this subsection.

(d) Conditional restoration. If the Assistant Commissioner [ ~~executive director~~ ] determines that a license terminated according to this section should be restored, the Assistant Commissioner [ ~~executive director~~ ] may condition the restoration of the license on any reasonable matters, such as, by way of illustration, continued medical treatment or therapy, or completion of refresher or other courses of training.

§106.1227.Administrative Action Based on Unsatisfactory Performance.

(a) Causes for administrative action based on unsatisfactory performance. The happening of any one or more of the following acts or omissions by a manager shall subject a manager to administrative action for unsatisfactory performance:

(1) Failing to personally operate the assigned facility as set forth in the permit or contract with the host and/or in the manager's record of assignment unless prior written approval to operate the facility in another manner has been obtained from the DARS/DBS [ ~~Commission~~ ].

(2) Failing to pay moneys due from the operation of the facility, including, but not limited to, taxes, fees, or assessments to a governmental entity or supplier, or knowingly giving false or deceptive information to or failing to disclose required information to or misleading in any manner a governmental entity (including the DARS/DBS [ ~~Commission~~ ]) or a supplier.

(3) Failing to file required financial and other records with the DARS/DBS [ ~~Commission~~ ] or preserve them for the time required by these policies and procedures.

(4) Failing to cooperate in a timely manner with audits conducted by the DARS/DBS [ ~~Commission~~ ] or other state or federal agencies.

(5) Failing to maintain insurance coverage required by these policies and procedures.

(6) Using BET equipment or facility premises to operate another business.

(7) Failing to properly maintain facility equipment in a clean and operable condition within the scope of the manager's level of maintenance authorization.

(8) Intentionally abusing, neglecting, using, or removing facility equipment without written DARS/DBS [ ~~Commission~~ ] authorization.

(9) Substance abuse while operating a facility; or other abusive use of substances that interferes with the operation of the facility.

(10) Operating a BET facility in a manner that demonstrably jeopardizes the DARS/DBS [ ~~Commission's~~ ] investment in the facility.

(11) Using privileged information concerning an existing facility to compete with the DARS/DBS [ ~~Commission~~ ] for the facility.

(12) Failing to comply with any federal or state law prohibiting discrimination and failure to assure services without distinction on the basis of race, gender, color, national origin, religion, age, political affiliation, or disability.

(13) Failing to maintain the necessary skills and abilities for effectively managing a facility.

(14) Using a facility to conduct unlawful activities.

(15) Failing to comply with the manager's responsibilities under applicable law, these rules, the requirements of the BET manual, or any proper and authorized instruction by DARS/DBS [ ~~Commission~~ ] personnel.

(16) Communicating or causing another person to communicate with a member of a selection panel or an applicant for a facility then being considered for assignment for the purpose of influencing or manipulating the selection of an applicant for the facility being considered for assignment by offering to give, a thing or act of value, including promises of future benefit, or by threat.

~~[ ~~(b)~~ Acts of improper contact. The participation in any one or more of the following acts or omissions by a licensee shall result in termination of the licensee's license:]~~

[ ~~(1)~~ Contacting or communicating with a member of a selection panel or an applicant for a facility then being considered for assignment for the purpose of influencing or manipulating, directly or indirectly, the selection of an applicant for the facility being considered for assignment.]

[ ~~(2)~~ Causing another person to contact or communicate with a member of a selection panel or an applicant for a facility then being considered for assignment for the expressed and stated purpose of influencing or manipulating, directly or indirectly, the selection of an applicant for the facility being considered for assignment.]

[ ~~(3)~~ Giving or offering to give, directly or indirectly, expressly or by implication, a thing of value, tangible or intangible, including promises of future benefit, for the purpose of influencing or manipulating any decision or process of BET.]

[ ~~(4)~~ Causing another person to give or offer to give, directly or indirectly, expressly or by implication, a thing of value, tangible or intangible, including promises of future benefit, for the purpose of influencing or manipulating any decision or process of BET.]

(b) [ ~~(c)~~ ] Administrative action pending an appeal. The DARS/DBS [ ~~Commission~~ ] may at its discretion suspend administrative action pending the outcome of an appeal.

(c) [ ~~(d)~~ ] Types of administrative actions. There are five types of administrative actions based on unsatisfactory performance:

(1) Written reprimand. Written reprimand means a formal statement describing violations of applicable law, these rules, the requirements of the BET manual, or any proper and authorized instruction by DARS/DBS [ ~~Commission~~ ] personnel.

(2) Probation. Probation means allowing a licensee to continue in BET in an effort to satisfactorily remedy a condition that is not acceptable under these rules. If the condition causing probation is satisfactorily remedied within the time periods specified in the written notice of probation, the probation will be lifted. If the unacceptable condition is not remedied within the time specified, additional and more serious administrative actions may ensue. When a licensee who has been on probation three times in a three-year period qualifies for probation for the fourth time within said three years, the licensee's license may be revoked according to DARS/DBS [ ~~Commission~~ ] procedures.

(3) Loss of facility. Loss of facility means the removal of a manager from the manager's current facility for administrative reasons when the manager's actions or inactions are endangering the state's investment in the facility.

(4) Termination. Termination means the cessation of a license issued to a licensee to operate a facility and the removal of the individual from BET.

(5) Emergency Removal of Manager.

(A) A manager may be summarily removed from a facility in an emergency. An emergency shall be deemed to exist when, in the reasonable judgment of the DARS/DBS [ ~~Commission~~ ], the DARS/DBS [ ~~Commission~~ ], in [ ~~with~~ ] consultation with the ECM chairman, determines that some act or acts or some failure to act of that manager or any person who is an employee, servant or agent of such manager, will, if such removal does not occur:

(i) result in a clear danger to the health, safety or welfare of any person or to the property of any person in, on or around the facility; or

(ii) result in a deterioration of the existing or future relationship with the host, thereby putting the continuation of the facility in jeopardy; or

(iii) present a clear potential of substantial loss or damage to the property of the State of Texas.

(B) In any case in which a manager has been summarily removed from a facility on an emergency basis for any of the reasons set forth in subparagraph (A) of this subsection, the manager shall be entitled to have a hearing as to the issue of a necessity of the summary removal within ten days after the removal has occurred.

(C) The time period for such hearing may be extended only by mutual agreement of the manager and the DARS/DBS [ ~~Commission~~ ], provided that if an official holiday of the State of Texas falls within the time period then the period shall be extended by the time of such holiday; or if the services of an arbitrator cannot be obtained in time to afford the hearing within the time period, then the time period shall be extended by the time necessary to obtain the services of such arbitrator and schedule the hearing.

(D) If the manager desires to have such a hearing, the manager shall notify the DARS/DBS [ ~~Commission~~ ] in writing within 48 hours following the removal. Such written notification need only state the name of the manager, the location of the facility, and that the manager desires to have a hearing as to the issue of the need for summary removal. The request may be delivered to the BET director, the Assistant Commissioner [ ~~executive director~~ ], or any local DARS/DBS [ ~~Commission~~ ] BET staff member in the geographical area in which the facility is located.

(E) Upon receipt of any such request the BET director shall obtain the services of an arbitrator from the American Arbitration Association ("AAA") or other similar organization to conduct the hearing.

(F) The manager shall be notified of the date, time and place of the hearing. To the extent possible, the hearing shall be conducted in an area near the location of the facility.

(G) The hearing shall be conducted in accordance with the rules of the American Arbitration Association, except that the arbitrator shall be requested to announce orally a decision at the conclusion of the hearing.

(H) If the arbitrator determines that no emergency necessitating the removal of the manager existed, then the manager shall be forthwith restored to the operation of the facility.

(I) No determination made as a result of the hearing shall operate to prejudice the rights of the manager to proceed with a grievance in accordance with the terms of these rules and the Randolph-Sheppard Act.

(d) [ ~~(e)~~ ] Administrative action procedures.

(1) The DARS/DBS [ ~~Commission~~ ] shall make the decision as to what administrative action to take based upon the seriousness of the violation, the damage to BET, and the licensee's record. [ The foregoing language notwithstanding, when the act or omission alleged to be a matter requiring administrative action is one or more of those described in subsection (b) of this section, the only administrative action available shall be termination of the license. ]

(2) Upon receipt of information which indicates that administrative action may be appropriate, the DARS/DBS [ ~~Commission~~ ] shall take the following actions prior to making a determination as to taking administrative action:

(A) The DARS/DBS [ ~~Commission~~ ] shall notify the licensee in writing of the allegations and reasons that administrative action is being considered. The notice shall either be hand delivered and read to the licensee, or it shall be delivered to the licensee's work or home address.

(B) The licensee shall have 5 business days to respond, either in person or in writing, to the notice. The response shall be made to the individual designated in the notice. After receiving the licensee's response, the DARS/DBS [ ~~Commission~~ ] shall decide what administrative action, if any, is appropriate. If no response is timely received from the manager, the DARS/DBS [ ~~Commission~~ ] shall decide what administrative action, if any, is to be taken without the licensee's response.

(C) If a decision is made to issue a written reprimand, the written reprimand will be accompanied by a brief summary of the evidence justifying the reprimand, suggested steps for correcting the violation, and consequences of not correcting the violation. All reprimands shall contain notice of the licensee's right to appeal the reprimand and a statement that failure to correct the violation may result in further administrative action.

(D) If a decision is made to place a licensee on probation, the DARS/DBS [ ~~Commission~~ ] shall deliver to the licensee a letter of probation containing the following:

(i) the specific reasons for probation;

(ii) the remedial action required to remove the licensee from probation;

(iii) the time within which said remedial action must take place;

(iv) the consequences of failure to take remedial action within the prescribed time frame; and

(v) notice of the licensee's right to appeal.

(E) Upon satisfactory completion of the remedial action outlined in the letter of probation, a licensee shall be removed from probation.

(F) Failure of the licensee to complete remedial requirements within the prescribed time frame shall result in one or more of the following actions:

(i) required training;

(ii) extension of probation;

(iii) restrictions on applying for another facility;

(iv) removal from the facility;

(v) termination of license.

(G) If, after the manager has had an opportunity to respond, a decision is made that sufficient grounds exist to remove the manager from a facility, the DARS/DBS [ ~~Commission~~ ] shall notify the manager in writing by hand delivery or certified U.S. Mail, return receipt requested, that the manager's assignment to the BET facility has been terminated and the manager must vacate the facility. The removal letter shall contain the following information:

(i) specific reasons for removal from the facility;

(ii) actions required by the manager, if any;

(iii) requirements for obtaining reassignment; and

(iv) notice of the manager's right to appeal.

(H) If, after the licensee has had an opportunity to respond, a decision is made that sufficient grounds exist for termination, the DARS/DBS [ ~~Commission~~ ] shall notify the manager in writing by hand delivery or certified U.S. Mail, return receipt requested, that the DARS/DBS [ ~~Commission~~ ] has decided that sufficient cause exists to terminate the licensee's license. The manager shall be instructed to vacate the facility if the licensee has not already done so. The termination letter shall contain the following information:

(i) specific reasons for termination;

(ii) actions required by the licensee, if any;

(iii) procedures for applying for any other DARS/DBS [ ~~Commission~~ ] services for which the person may be eligible; and

(iv) notice of the licensee's rights under the Randolph-Sheppard Act.

(3) The provisions of paragraph (2) of this subsection notwithstanding, pending a determination with respect to administrative action, a manager may be removed from a facility if the DARS/DBS [ ~~Commission~~ ] considers such removal in the best interest of BET and efforts to correct the deficiencies have been unsuccessful.

(4) During the license termination process, the manager shall not be eligible for assignment to any other BET facility.

(e) [ ~~(f)~~ ] Prior to termination of a license, the DARS/DBS [ ~~Commission~~ ] shall afford the licensee an opportunity for a full evidentiary hearing.

§106.1229.Procedures for Resolution of Manager's [ ~~Licensee's~~ ] Dissatisfaction.

(a) Appealable actions. These rules provide the procedures for licensees who are dissatisfied with a DARS/DBS [ ~~Commission~~ ] action arising from the operation of BET.

(b) Actions not subject to appeal. The phrase " DARS/DBS [ ~~Commission~~ ] action arising from the operation of BET" in subsection (a) of this section does not include the following actions of the DARS/DBS [ ~~Commission~~ ]:

(1) the hiring, firing or discipline of DARS/DBS [ ~~Commission~~ ] employees;

(2) the challenge of federal or state law, or rules previously approved by the Secretary of Education pursuant to the Randolph-Sheppard Act; or

(3) an action by the DARS/DBS [ ~~Commission~~ ] unless it is alleged that the action is in violation of applicable law, these rules, the requirements of the BET manual, any proper and authorized instruction by DARS/DBS [ ~~Commission~~ ] personnel, or is unreasonable. Unreasonable shall mean without rational basis or arbitrary and capricious.

(c) DARS/DBS [ ~~Commission~~ ] discretion and sovereign immunity. The DARS/DBS [ ~~Commission~~ ] does not waive its right and duty to exercise its lawful and proper discretion. The DARS/DBS [ ~~Commission~~ ] does not waive its sovereign immunity.

(d) Remedies. Remedies available to resolve dissatisfaction shall correct the action complained of from the earlier time of:

(1) agreement by the parties as to an appropriate remedy, or

(2) a final resolution pursuant to the Randolph-Sheppard Act that the DARS/DBS [ ~~Commission~~ ] acted in violation of applicable law, these rules, the requirements of the BET manual, any proper and authorized instruction by DARS/DBS [ ~~Commission~~ ] personnel, or acted unreasonably.

(e) Informal procedures to review dissatisfactions. At the request of a licensee, the DARS/DBS [ ~~Commission~~ ] shall arrange for and participate in informal meetings in an effort to quickly resolve a matter of dissatisfaction arising from the operation or administration of BET. The informal process is for the purpose of quickly and amicably resolving an issue in controversy. It is not for the purpose of denying or delaying the manager's right to pursue resolution of a matter through a full evidentiary hearing. At any point during the informal process, either party may elect to terminate the following procedures:

(1) A licensee may initiate informal procedures by notifying the DARS/DBS [ ~~Commission~~ ] in writing through the BET Director that the licensee is dissatisfied with a matter arising from the operation or administration of BET. The written notice must describe with reasonable particularity the specific matter in controversy, the date the action occurred, or an approximate date if the exact date is not known, and the licensee's desired relief or remedy. If the licensee is dissatisfied with a series of the same or related actions over a period of time, the notice should describe to the best of the licensee's ability the timeframe of the events and include the date of the most recent event about which the licensee is dissatisfied.

(2) To ensure that informal resolution is possible in a timely manner, the licensee's request to initiate informal proceedings must be filed with the DARS/DBS [ ~~Commission~~ ] no later than six months after the most recent event specified in the request. DARS/DBS [ ~~The Commission~~ ] shall within a reasonable time arrange a meeting at a location, date, and time satisfactory to all parties.

(3) The licensee must notify the DARS/DBS [ ~~Commission~~ ] when filing a request for informal proceedings if the licensee will be represented by counsel during mediation. The DARS/DBS [ ~~Commission~~ ] will be represented by counsel only when the licensee is represented by counsel.

(4) Meetings shall take place in an informal environment and shall be attended by the licensee, a BET staff person, and a neutral third party who shall serve as an informal mediator during the discussions.

(5) The neutral third party shall be a person certified in conducting mediations.

(6) The neutral third party's responsibility is to report to the DARS/DBS [ ~~executive director~~ ] only that the effort to resolve the matter to the licensee's satisfaction was or was not successful. If an agreement is reached, then the actions agreed to with respect to the facility or licensee shall be forthwith taken.

(f) Full evidentiary hearing. A manager has the right to request a full evidentiary hearing to resolve a dissatisfaction according to the following:

(1) A manager has the right to request a full evidentiary hearing without first going through mediated meetings described in subsection (e) of this section .

(2) A request for an evidentiary hearing must be made no later than the 20th business day after the occurrence of the agency action about which the manager complains. The Assistant Commissioner [ ~~executive director~~ ], upon request of the complaining party, may extend the time period for filing a grievance upon the showing of good cause by the complaining party for such additional period if such request is made no later than the 20th business day after the occurrence of the agency action about which the manager complains.

(3) A manager requesting a full evidentiary hearing after the conduct of mediated meetings described in subsection (e) of this section must request such hearing in writing no later than the 20th business day after receipt of the Assistant Commissioner's [ ~~executive director's~~ ] decision.

(4) A request for a full evidentiary hearing must be in writing and transmitted to the Assistant Commissioner [ ~~executive director~~ ]. A request that is postmarked within the applicable time frame shall be considered timely delivered if properly posted.

(5) The request for a full evidentiary hearing must describe the specific action with reasonable particularity sufficient to provide notice as to the action which is alleged to be unreasonable or in violation of applicable law, these rules, the requirements of the BET manual, or any proper and authorized instruction by DARS/DBS [ ~~Commission~~ ] personnel. The request must, to the best of the complainant's knowledge, contain the date the action occurred and the law or regulation must be reasonably identified if an action is alleged to be in violation of law, these rules, the requirements of the BET manual, or regulation. The request must also identify the desired relief or remedy.

(6) The manager may be represented in the evidentiary hearing by legal counsel or other representative of the manager's choice, at the manager's expense.

(7) Reader or other communication services, if needed, shall be arranged for the manager by the DARS/DBS [ ~~Commission~~ ] upon request by the manager at least three business days prior to the hearing date.

(8) The manager shall be notified in writing of the time and place fixed for the hearing and of the manager's right to be represented by legal or other counsel.

(9) The presiding officer at the hearing shall be an impartial and qualified official who has no involvement either with the DARS/DBS [ ~~Commission~~ ] action which is at issue or with the administration or operation of BET.

(10) Hearings shall be conducted in accordance with the Randolph-Sheppard Act, these rules, and the State Office of Administrative Hearings (SOAH) procedures for hearing contested case hearings contained in 1 TAC §105.1 et seq. to the extent those procedures do not conflict with the Act and its implementing regulations or these rules.

(11) Licensees bringing complaints shall have the burden of proving their cases by the preponderance of evidence. Licensees shall present their evidence first. When a hearing is requested as a result of administrative action by the DARS/DBS [ ~~Commission~~ ] against a licensee, the DARS/DBS [ ~~Commission~~ ] shall have the burden of proving its case by a preponderance of the evidence and shall present its evidence first.

(12) A record shall be made of the evidence and shall be made available to the parties by the DARS/DBS [ ~~Commission~~ ] no later than the 30th business day after the close of the hearing.

(13) The hearing officer shall issue a recommendation which shall set forth the principal issues and relevant facts adduced at the hearing and the applicable provisions of law, rule, the requirements of the BET manual, or any proper and authorized instruction by DARS/DBS [ ~~Commission~~ ] personnel. The recommendation shall contain findings of fact and conclusions with respect to each of the issues, and the reasons and bases for the conclusions.

(14) In formulating a recommendation, the hearing officer shall not evaluate whether the DARS/DBS [ ~~Commission's~~ ] actions were wise, efficient, or effective. Rather, the hearing officer is limited to determining whether the DARS/DBS [ ~~Commission's~~ ] actions were unreasonable, or violated applicable law, these rules, the requirements of the BET manual, or any proper and authorized instruction by DARS/DBS [ ~~Commission~~ ] personnel.

(15) Should the hearing officer find that the actions taken by the DARS/DBS [ ~~Commission~~ ] were unreasonable, or violated applicable law, these rules, the requirements of the BET manual, or any proper and authorized instruction by DARS/DBS [ ~~Commission~~ ] personnel, the hearing officer shall also recommend any prospective action necessary to correct the violations.

(16) The hearing officer's recommendation shall be made no later than the 30th business day after the receipt of the official transcript. The recommendation shall be delivered promptly to the Assistant Commissioner [ ~~executive director~~ ].

(17) The Assistant Commissioner [ ~~executive director~~ ] shall review the recommendation of the hearing officer and forward a decision to the manager no later than the 20th business day after receipt of the hearing officer's recommendation.

(g) Arbitration. A manager appealing the DARS/DBS [ ~~Commission's~~ ] decision must file a complaint with the Secretary of Education in conformity with the provisions of the implementing regulations at 34 CFR, part [ ~~Sec.~~ ] 395.13 of the Act, pertaining to arbitration of vendor complaints.

§106.1231.Establishing and Closing Facilities.

(a) Establishing facilities.

[ ~~(1)~~ ] On its own initiative, at the request of an agency that controls federal or state property, or at the request of a private organization, the DARS/DBS [ ~~Commission~~ ] shall survey the property, blueprints, or other available information concerning the property to determine whether the installation of a BET facility is feasible and consonant with applicable laws and regulations and with the DARS/DBS [ ~~Commission's~~ ] vocational rehabilitation objectives.

(1) [ ~~(A)~~ ] If the installation of a BET facility is determined to be feasible, the DARS/DBS [ ~~Commission~~ ] shall proceed to develop plans for the establishment of a facility in accordance with procedures promulgated and implemented by the DARS/DBS [ ~~Commission~~ ] staff and, when the facility is developed, shall assign a manager to the facility.

(2) If it is determined that a blind person could not properly operate a vending facility at a particular location, the pertinent facility data will be presented to the Commissioner of the Department of Assistive and Rehabilitative Services to determine if a person whose disability is not of a visual nature could operate the facility in a proper manner. The phrase "could not properly operate a vending facility" includes but is not limited to the existence, at the time of the establishment of the facility, of laws or regulations that restrict the blind from operating a particular vending facility as defined under state and federal laws.

[ ~~(B)~~ If the Commission determines that the location being considered for a BET facility is not appropriate for use in the program or that the creation of the facility is not feasible and the location being considered is on state property, then the following shall occur:]

[ ~~(i)~~ The BET director shall, no later than the 40th business day after the date the location was brought to the attention of the Commission or the Commission became aware of its possible use as a BET facility, certify to the executive director that the location being considered is not appropriate for BET use or that it is not feasible to establish a BET facility at the location.]

~~[ ~~(ii)~~ The location shall be made available to the Texas Rehabilitation Commission in accordance with state law.]~~

~~[ ~~(2)~~ The procedures set forth in this section shall apply whether the consideration of a location is an initial or a subsequent review.]~~

~~[ ~~(b)~~ Maximizing employment opportunities. ]~~

[ ~~(1)~~ On the effective date of this section, the Commission shall hereafter maximize the number of employment opportunities for persons who are blind by applying the procedures set forth in this subsection. This subsection shall not affect the current assignment of any manager at the time this section becomes effective.]

[ ~~(2)~~ Upon the opening of a new location or upon needing to advertise and assign a manager to an existing facility, the Commission shall determine whether the opportunity exists to increase the number of employment opportunities for persons who are blind. The Commission shall increase the number of employment opportunities in a location when all of the following circumstances exist:]

~~[ ~~(A)~~ The location must be physically suited to support the operation of two or more BET facilities, such as, by way of illustration and not by way of definition or limitation:]~~

~~[ ~~(i)~~ a single building in which two or more clearly separate and distinct facilities can be located in two or more separate areas of the building;]~~

~~[ ~~(ii)~~ a location comprised of a complex of buildings, each of which can support one or more BET facilities; or]~~

[ ~~(iii)~~ a location that includes two or more clearly separate and distinct sites that can support different operations, such as two or more dining areas; a dining area and a site for vending machines; a cafeteria and one or more other types of BET facilities; or any combination of the foregoing.]

[ ~~(B)~~ The creation of two or more facilities from one location must provide from at least one of the facilities before set-aside fees an income equal to or greater than 600% of the state median income of all managers for the preceding year.]

[ ~~(C)~~ Once the requirement in subparagraph (B) is satisfied, if any additional facility is not projected to provide before set-aside fee an income of at least 200% of the state median income of all managers for the preceding year, such site shall be assigned by the Commission as a satellite location. Once the satellite location produces net proceeds in excess of 200% of the state median income per year before set aside fees, it shall be advertised for assignment as a full-time employment opportunity pursuant to these rules.]

[ ~~(D)~~ Once the requirement in subparagraph (B) is satisfied, if at least one additional facility is projected to provide before set-aside fee an income of at least 200% of the state median income of all managers for the preceding year, then the Commission shall advertise such facility or facilities pursuant to these rules.]

~~[ ~~(E)~~ There is no circumstance beyond the control of the Commission which precludes assignment of more than one manager to the same location.]~~

[ ~~(F)~~ Under no circumstances shall more than one manager be assigned to a clearly separate and distinct site regardless of income produced or any other factors. Additionally, under no circumstances shall a site be divided into separate facilities by any means other than by actual physical separation.]

[ ~~(G)~~ In those situations in which multiple managers are assigned to a single location and the host of the location requires a single point of contact, the Commission shall designate from among the managers assigned to the location a directing manager to serve as the single point of contact. The directing manager shall be compensated for these services in accordance with policies for paying set-aside fees.]

(b) [ ~~(c)~~ ] Closing facilities.

[ ~~(1)~~ ] Except for temporary closings by DARS/DBS [ ~~Commission~~ ] staff, no BET facility shall be closed by the DARS/DBS [ ~~Commission~~ ] until each of the following has occurred:

(1) [ ~~(A)~~ ] The BET director has certified to the Assistant Commissioner [ ~~executive director~~ ] that the facility is no longer a feasible or viable BET facility and provides reasons for that opinion.

(2) [ ~~(B)~~ ] The Assistant Commissioner [ ~~executive director~~ ] has approved the proposed closing of the facility.

[ ~~(C)~~ The facility has been made available to the Texas Rehabilitation Commission for operation of a facility by a person disabled by conditions other than blindness if the location is on state property, and the Texas Rehabilitation Commission has declined the facility.]

~~[ ~~(2)~~ All facility closings shall be reported to the Commission's board at the regular meeting of the board next following such closing with the reasons for the closing.]~~

§106.1233.Forms.

The DARS/DBS [ ~~Commission~~ ] adopts the following forms by reference. Copies are available from any local DARS/DBS [ ~~Commission~~ ] office or by calling the agency's toll-free line (1-800-252-5204) and requesting a copy.

(1) BET Application (BE-114) dated October 1, 2006 [ ~~September 1, 2003~~ ].

(2) Business Enterprises of Texas Monthly Facility Report, (BE-117), dated October 1, 2006 [ ~~September 1, 2003~~ ].

(3) BET Assignment - Requirements for Operation of a Vending Facility Under Randolph-Sheppard Act and Applicable State Statutes Between DARS/DBS [ ~~Texas Commission for the Blind~~ ] and a Licensed Vendor (BE-121), dated October 1, 2006 [ ~~September 1, 2003~~ ].

(4) Equipment Loan Agreement (BE-122) dated October 1, 2006 [ ~~September 1, 2003~~ ].

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 April 30, 2007.

TRD-200701659

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Subchapter I. BLIND CHILDREN'S VOCATIONAL DISCOVERY AND DEVELOPMENT PROGRAM

1. GENERAL INFORMATION

40 TAC §§106.1401, 106.1403, 106.1405, 106.1407, 106.1409, 106.1411, 106.1413

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

§106.1401.Purpose and Legal Authority.

The Blind Children's Vocational Discovery and Development Program is established to implement Human Resources Code, Chapter 91, §91.028 (relating to Services for Visually Handicapped Children). The Division [ ~~Commission~~ ] is authorized to provide children who are blind and children who have visual impairments with services to supplement the services provided by other state agencies when the Division [ ~~Commission~~ ] determines that the provision of the services is appropriate and that the services will assist the children in achieving financial self-sufficiency and a fuller and richer life.

§106.1403.Public Access to Information, Forms and Documents.

Requests for access to or copies of information maintained by the Division [ ~~Commission~~ ] in the administration of this chapter are handled according to §106.1411 [ ~~§169.6~~ ] of this chapter pertaining to confidentiality of records, and §101.3681 [ ~~§159.40~~ ], et seq. of this title pertaining to requests for public information.

§106.1405.Remedy of Dissatisfaction.

The agency's appeal process in Chapter 106, Subchapter A, Division 2 [ ~~Subchapter B of Chapter 161~~ ] of this title (relating to Blind Children's Vocational Discovery and Development Program Appeals and Hearing Procedures ) shall be available to parents who wish to contest a determination made concerning eligibility for services, the denial and furnishing of services, and the termination of services.

§106.1407.Definitions.

(1) Blind--Best corrected visual acuity of 20/200 or less in the better eye, or a visual loss that results in a limitation in the field of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees, which means a field of no greater than 20 degrees in the better eye.

(2) BCVDD Program--Blind Children's Vocational Discovery and Development Program.

(3) BCVDD Specialist--An employee of the Division [ ~~Commission~~ ] designated to provide BCVDD Program services.

(4) Division [ ~~Commission~~ ]--The Division for Blind Services [ ~~Texas Commission for the Blind~~ ].

(5) Comparable services and benefits--Any service, benefit, or resource available to a child from another public or private source that provides in whole or in part the services that the child would otherwise receive from the Division [ ~~Commission~~ ].

(6) Developmental services--Services that increase the capabilities and functional abilities of a child in a noneducational setting.

(7) Educational support services--Services that assist a child in gaining the maximum benefit from educational services provided by others.

(8) Federal poverty level--The amount of income, depending on family size, that the United States Division of Health and Human Services determines to be the level of income below which a family is classified as being in poverty.

(9) Habilitation services--Services that develop a severely visually impaired child's skills for independent living and potential employment.

(10) Nonsevere visual loss--A visual acuity such that one eye meets the definition of blind or severe visual loss and the acuity in the other eye with best correction is better than 20/70, or a visual acuity in both eyes with best correction of better than 20/70.

(11) Parent--The child's natural or adoptive parent; or the spouse of the child's natural or adoptive parent; or the child's guardian, surrogate parent; or the spouse of the guardian or surrogate parent; or a person or spouse of the person who is acting as the child's parent.

(12) Referral--A child who has been referred to the BCVDD Program for services but for whom an application has not been completed.

(13) Restoration services--Services to eliminate or reduce limitations imposed by a visual impairment on the functioning of a child and cosmetic services necessary to improve the physical appearance of the child's eyes when the eyes are abnormal to the extent that they negatively impact the child's social and emotional well-being.

(14) Severe visual loss--A loss of vision such that the best corrected visual acuity is between 20/70 and 20/200 in the better eye; or a visual loss such that the visual field is 30 degrees or less but greater than 20 degrees with best correction.

(15) Severely visually impaired child--A child with a visual impairment that has resulted in a permanent condition of blindness or severe visual loss; or a child who has been certified as blind or severely visually impaired by a local education agency; or a child who has been determined to be functioning as a person who is blind or who has a severe visual loss.

(16) Technology services--Services to provide a child access to an item, piece of equipment, or product system that maintains or improves the child's communication, independent living, social, or prevocational skills.

(17) Visual impairment--An injury, disease, or other disorder that reduces, or if not treated will probably result in reducing, visual functioning; or a visual condition requiring cosmetic treatment, psychological assistance, counseling, or other assistance that the Division [ ~~commission~~ ] can render.

§106.1409.Comparable Services and Benefits.

(a) The Division [ ~~Commission~~ ] shall consider comparable services and benefits prior to expending Division [ ~~Commission~~ ] funds for all BCVDD Program services.

(b) The child's parent shall be required to apply for assistance from any resource identified by the Division [ ~~Commission~~ ] that may be a resource for comparable services and benefits.

(c) The child's parent must provide acceptable evidence of eligibility or ineligibility for such comparable services and benefits to the Division [ ~~Commission~~ ] within 90 days from application or additional expenditures may be suspended.

(d) Whenever possible and practical, the child's parent's choice of health professionals and appropriate facilities is honored, as long as such professionals and facilities are willing to accept reimbursement in accordance with §101.3611 [ ~~§159.6~~ ] of this title, pertaining to rates for medical services.

(e) The Division [ ~~Commission~~ ] shall verify a child's eligibility for Medicaid at the time of application if the parent's income falls at or below 185% of the federal poverty level as determined under the provisions of subchapter D of this chapter relating to Economic Resources.

§106.1411.Confidentiality of Records.

(a) All personal information furnished to and gathered by the Division [ ~~Commission~~ ] in the administration of this chapter, including names, addresses, records of agency evaluations, reports of medical examinations and treatments, financial information, and photographs, shall be confidential in accordance with these rules.

(b) Personal information shall not be disclosed directly or indirectly outside the Division [ ~~Commission~~ ] unless the parent's consent has been obtained in writing, or unless the disclosure or release of personal information:

(1) is required by federal or state law;

(2) is required in response to investigations in connection with law enforcement, fraud or abuse, and in response to the order of a court of appropriate jurisdiction; or

(3) is required in order to protect the individual or others when the individual poses a threat to his or her own safety or the safety of others.

(c) Information containing identifiable personal information shall not be shared with advisory or other bodies that do not have official responsibility for administration of the program.

(d) Personal information may be released to an organization, agency, or individual engaged in audit, evaluation, or research only for purposes directly connected with the administration of the blind and visually impaired children's program, or for purposes that would significantly improve the quality of life for children with visual impairments and only if the organization, agency, or individual assures that:

(1) the information will be used only for the purposes for which it is being provided;

(2) the information will be released only to persons officially connected with the audit, evaluation, or research;

(3) the information will not be released to the involved consumer and/or parent;

(4) the information will be managed in a manner to safeguard confidentiality; and

(5) the final product will not reveal any personal identifying information without the informed written consent of the involved individual or the individual's representative.

(e) If personal information has been obtained from another agency or organization, it may be released only by, or under the conditions established by, the other agency or organization.

§106.1413.Service Delivery.

(a) Oversight and monitoring of service delivery. Service delivery shall be monitored by trained personnel through the use of onsite visits and standard case review checklists. The checklist shall contain sufficient information to evaluate case documentation, timely service delivery, and client progress towards goals.

(b) Guidance to service delivery staff. Service delivery staff shall be provided with written guidelines and training on developing consumer service plans, measuring and documenting consumer progress toward an expected outcome, and the timely authorization of services. The guidelines shall include, but are not limited to, the following:

(1) Procedures for providing information to applicants and consumers that aid in making an informed choice about the selection of a habilitation outcome, the specific services needed to achieve the outcome, the entity that will provide the services, and the settings in which the services will be provided;

(2) Procedures for monitoring and documenting consumer progress in completing services that are included in the consumer's service plan. Said procedures shall include reasonable time frames in which the provision of services are expected to be completed or initiated, provided that the time periods are not so short as to effectively deny an individual a necessary service, not absolute, and permit exceptions so that individual needs can be addressed. The duration of each service needed by an individual must be determined on an individual basis.

(c) Reasonable Timeframes for Service Delivery. The following timeframes shall serve as benchmarks to service delivery staff and monitoring staff in evaluating a consumer's progress towards the expected outcome in the service plan.

(1) An assessment to determine eligibility will normally be completed within 60 days, unless exceptional and unforeseen circumstances beyond the control of the Division [ ~~commission~~ ] precludes a determination.

~~[ ~~(2)~~ Vision screening services will normally be completed within 90 days.]~~

~~[ ~~(3)~~ Restoration services will normally be completed within 12 months.]~~

(2) [ ~~(4)~~ ] Habilitation services for a permanently severely visually impaired child:

(A) A habilitation plan will normally be developed within 90 [ 30 ] days after an eligibility determination.

(B) The child will normally complete all planned habilitation services within 60 months.

~~[ ~~(C)~~ Eye treatment services, if part of the plan, will normally be completed within 24 months.]~~

(D) [ ~~(E)~~ ] Applicable referrals for educational placement will be completed within 30 days.

(E) [ ~~(F)~~ ] Progress on other services, such as developmental, independent living, social and emotional development, prevocational, and communication services, will be documented at least annually.

(F) [ ~~(G)~~ ] Post-outcome services will normally be completed within 6 months.

(d) Financial planning information. Quarterly budget information shall be provided to agency field [ ~~regional~~ ] directors. Field [ ~~Regional~~ ] directors will disseminate this information to all caseload carrying staff for financial planning purposes.

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 April 30, 2007.

TRD-200701660

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

2. BASIC PROGRAM REQUIREMENTS

40 TAC §§106.1421, 106.1423, 106.1425, 106.1427, 106.1429, 106.1433

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

§106.1421.Referral and Application.

(a) A child may be referred to the BCVDD Program by letter, telephone, direct contact, or by another means by providing a name and address to any Division [ ~~Commission~~ ] office.

(b) A child may be referred by the Division [ ~~Commission~~ ] to another Division [ ~~Commission~~ ] program if necessary to better meet the child's needs.

(c) A child is considered an applicant for BCVDD Program services on the day the Division [ ~~Commission~~ ] receives a properly completed application form signed by the child's parent.

§106.1423.Eligibility.

(a) To be eligible to receive services under this chapter, an applicant must:

(1) have a visual impairment;

(2) reside in Texas; and

(3) be 18 years of age or younger.

(b) A person over the age of 18 and under the age of 22 who meets the criteria in subsection (a)(1) and (2) of this section and who is enrolled in a secondary school may receive services under this chapter if the Division [ ~~Commission~~ ] determines that children's services are appropriate for the individual. The term "child" as used in this chapter shall encompass persons included in this subsection.

(c) Eligibility requirements shall be applied without regard to the age, gender, race, color, creed, or national origin of the applicant.

(d) Expenditure of funds and provision of services may be restricted by other criteria in these rules.

§106.1425.Prior Authorization of Services.

The Division [ ~~Commission~~ ] shall not pay for any service not authorized in advance by the Division [ ~~Commission~~ ].

§106.1427.Family Service Plan.

(a) The Division [ ~~Commission~~ ] shall develop a family service plan jointly with the child's parent when it has been determined that the child needs habilitation services.

(b) The family service plan shall contain a description of the child's planned services, agreements between the parent and the Division [ ~~Commission~~ ], and other information necessary to administer the provisions of this chapter.

§106.1429.Case Closures.

(a) The Division [ ~~Commission~~ ] shall close a child's case when the child's plan of services has been completed, or sooner if:

(1) the child has moved out of the state;

(2) the child cannot be located;

(3) the child has died; or

(4) the parent refuses to cooperate with the Division [ ~~Commission~~ ].

(b) The Division [ ~~Commission~~ ] shall inform the child's parent of the Division's [ ~~Commission's~~ ] intent to close the child's case [ ~~no fewer than 30 days in advance~~ ] by sending a letter to the parent's last known address. No notice shall be sent if the case is being closed due to the death of the child.

§106.1433.Reports of Suspected Neglect or Abuse.

In compliance with state laws governing such reports, the Division [ ~~Commission~~ ] shall report instances in which the agency suspects a child's physical or mental health or welfare has been or may be adversely affected by abuse or neglect.

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 April 30, 2007.

TRD-200701661

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

3. SERVICES

40 TAC §§106.1445, 106.1447, 106.1449, 106.1451, 106.1453, 106.1455, 106.1457, 106.1461, 106.1463

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

§106.1445.Assessment Services.

(a) The Division [ ~~Commission~~ ] may provide medical and diagnostic assessments jointly agreed to by the BCVDD specialist and parent that are necessary to determine the eligibility of a child and to initiate a service plan upon a finding of eligibility.

(b) Services in this section, with the exception of purchasing copies of existing records, are subject to application of Division 4 [ ~~Subchapter D~~ ] of this subchapter [ ~~chapter~~ ] (relating to Economic Resources) and Division 5 [ ~~Subchapter E~~ ] of this subchapter [ ~~chapter~~ ](relating to Order of Selection for [ ~~Payment of~~ ] Services).

§106.1447.Physical Examinations and Other Medical Specialty Examinations.

(a) The Division [ ~~Commission~~ ] may provide physical examinations and other necessary medical specialty examinations jointly agreed to by the BCVDD specialist and parent when the BCVDD specialist determines that the examination is necessary for the child to participate in planned services.

(b) Services in this section are subject to application of Division 4 of this subchapter [ ~~Subchapter D of this chapter~~ ] (relating to Economic Resources), with the exception of purchasing copies of existing records; Division 5 of this subchapter [ ~~Subchapter E of this chapter~~ ] (relating to Order of Selection for Payment of Services); and Division 6 of this subchapter [ ~~Subchapter F of this chapter~~ ] (relating to Case Management Reimbursement Charges).

§106.1449.Other Diagnostic Evaluations.

(a) Diagnostic evaluations of a nonmedical nature that are necessary to plan developmental services may be provided by the Division [ ~~Commission~~ ] only for children receiving habilitation services and jointly agreed to by the BCVDD specialist and parent.

(b) Services included in this section are subject to application of Division 4 of this subchapter [ ~~Subchapter D of this chapter~~ ] (relating to Economic Resources), with the exception of purchasing copies of existing records; Division 5 of this subchapter [ ~~Subchapter E of this chapter~~ ] (relating to Order of Selection for Payment of Services); and Division 6 of this subchapter [ ~~Subchapter F of this chapter~~ ] (relating to Case Management Reimbursement Charges).

§106.1451.Restoration Services.

(a) Restoration services do not include routine eye exams, treatments such as drops for glaucoma and conjunctivitis, or glasses or contact lenses for children whose only eye problem is a refractive error in which the uncorrected visual acuity is better than 20/70 in both eyes.

(b) Restoration services must be recommended in writing by an ophthalmologist, optometrist, ocularist, or orthoptist and jointly agreed to by the BCVDD specialist and parent.

(c) Only one pair of replacement glasses or contact lenses may be purchased in a 12-month period for a child receiving restoration services unless there is a .5 or greater diopter change in either prescribed lens.

(d) Restoration services are subject to application of Division 4 of this subchapter [ ~~Subchapter D of this chapter~~ ] (relating to Economic Resources), Division 5 of this subchapter [ ~~Subchapter E of this chapter~~ ] (relating to Order of Selection for Payment of Services), and Division 6 of this subchapter [ ~~Subchapter F of this chapter~~ ] (relating to Case Management Reimbursement Charges).

§106.1453.Travel Services.

(a) Travel services, including lodging, food, and transportation for a child and parent, may be provided when travel is necessary to participate in other services covered under this subchapter [ ~~except vision screening services~~ ].

(b) Travel services available to the child and parent without cost to the Division [ ~~Commission~~ ] shall be used first.

(c) Travel services shall be reimbursed at a rate no more than the rate authorized for state employees traveling on official business. In the event commercial transportation is used for the purposes allowed under this chapter, services shall be limited to the expenses of the child and one travel companion.

(d) To receive reimbursement for travel expenses, a parent is required to submit receipts and information requested by the BCVDD specialist.

(e) Travel services are subject to application of Division 4 of this subchapter [ ~~Subchapter D of this chapter~~ ] (relating to Economic Resources), Division 5 of this subchapter [ ~~Subchapter E of this chapter~~ ] (relating to Order of Selection for Payment of Services), and Division 6 of this subchapter [ ~~Subchapter F of this chapter~~ ] (relating to Case Management Reimbursement Charges).

§106.1455.Habilitation Services.

(a) The following habilitation services may be provided by the Division [ ~~Commission~~ ] only for children who meet the definition of severely visually impaired child or their families:

(1) developmental services;

(2) psychological counseling for the child and the child's family members who reside in the same household with the child;

(3) technology services;

(4) educational support services;

(5) independent living skills services provided through agency staff to the child and to other individuals who are involved in the child's development of independent living skills; and

(6) braille instruction for family members of children receiving habilitation services.

(b) The provisions of Division 4 of this subchapter [ ~~Subchapter D of this chapter~~ ] (relating to Economic Resources), Division 5 of this subchapter [ ~~Subchapter E of this chapter~~ ] (relating to Order of Selection for Payment of Services), and Division 6 of this subchapter [ ~~Subchapter F of this chapter~~ ] (relating to Case Management Reimbursement Charges) are applied to developmental services, psychological counseling services, and technology services.

(c) The provisions of Division 6 of this subchapter [ ~~Subchapter F of this chapter~~ ] (relating to Case Management Reimbursement Charges) are applied to independent living skills services and braille instruction.

§106.1457.Counseling, Guidance, and Follow-up Services.

(a) Counseling, guidance, and follow-up services by BCVDD specialists are available to all eligible children.

(b) Services covered under this section are subject to Division 6 of this subchapter [ ~~Subchapter F of this chapter~~ ] (relating to Case Management Reimbursement Charges).

§106.1461.Child Care Services.

(a) Child care services may be provided only to parents of children receiving habilitation services.

(b) Child care services may be provided only to allow family members to participate in services that will result in a substantial contribution to the child's ability to benefit from habilitation services.

(1) specify the level of child care necessary;

(2) select an appropriate provider and make arrangements for the provision of care;

(3) pay the child care provider; and

(4) in order to receive reimbursement provide the Division [ ~~Commission~~ ] with a signed receipt in a format acceptable to the Division [ ~~Commission~~ ] when child care services are completed.

(d) Services in this section are subject to Division 4 of this subchapter [ ~~Subchapter D of this chapter~~ ] (relating to Economic Resources), Division 5 of this subchapter [ ~~Subchapter E of this chapter~~ ] (relating to Order of Selection for Payment of Services), and Division 6 of this subchapter [ ~~Subchapter F of this chapter~~ ] (relating to Case Management Reimbursement Charges).

§106.1463.Services Provided by Schools.

The Division [ ~~Commission~~ ] shall not pay for any service that is the school's responsibility under the Individuals With Disabilities Education Act (IDEA) and any federal and state rules and regulations adopted pursuant thereto.

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 April 30, 2007.

TRD-200701662

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

5. ORDER OF SELECTION FOR PAYMENT OF SERVICES

40 TAC §§106.1485, 106.1487, 106.1489

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

§106.1485.Defined Purpose.

(a) The purpose of this subchapter is to establish an order of selection for payment of services that may be used when funds are insufficient to serve all eligible children.

(b) The public may contact the Division [ ~~Commission~~ ] at any local office or may call the agency's toll-free line (1-800-252-5204) to inquire if the agency is operating under provisions of this subchapter and to inquire about the expenditure category at which the Division [ ~~Commission~~ ] may be operating.

§106.1487.Application of Order of Selection.

(a) The order of selection is applied after eligibility for services is determined.

(b) A service that can be paid from resources other than the Division's [ ~~Commission's~~ ] may be provided to a child regardless of the order of selection.

§106.1489.Order of Selection Expenditure Categories.

Order of Selection expenditure categories, from most restrictive to least restrictive, are:

(1) Category A--No expenditure of case service funds.

(2) Category B--Expenditure of case service funds only for diagnostics.

(3) Category C--Expenditure of case service funds authorized for any planned, necessary BCVDD Program services according to the following priorities:

(A) Priority 1--Children who meet the definition of being blind.

(B) Priority 2--Children who are blind in one eye and who have a severe visual loss in the other eye.

(D) Priority 4--Children who are certified as visually impaired by a local education agency.

(E) Priority 5--Children who have a nonsevere visual loss and a degenerative eye condition that will result in further visual loss;

(F) Priority 6--Children who need a prosthesis.

(G) Priority 7--Children with nonsevere visual losses that affect visual acuity who are in need of services other than correction of a refractive error.

[ ~~(H)~~ Priority 8--Children with treatable visual impairments that may or may not affect visual acuity and children with an uncorrected visual acuity of 20/70 or worse in both eyes who need no services other than correction of a refractive error.]

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 April 30, 2007.

TRD-200701663

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

6. CASE MANAGEMENT REIMBURSEMENT CHARGES

40 TAC §106.1501

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

§106.1501.Legal Basis and Policy.

Public Law 100-203, §4118(i), the Omnibus Budget Reconciliation Act of 1987, has been invoked by the Department of State Health Services [ ~~Texas Department of Health~~ ], which limits the provider of case management for children who are blind and visually impaired in Texas to the Department of Assistive and Rehabilitative Services, Division for Blind Services [ ~~Texas Commission for the Blind~~ ]; therefore, it is the policy of the Division [ ~~Commission~~ ] to seek reimbursement for case management services provided to eligible children under this chapter.

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 April 30, 2007.

TRD-200701664

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Subchapter M. DONATIONS

40 TAC §§106.1801, 106.1803, 106.1805, 106.1807, 106.1809, 106.1811, 106.1813

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

§106.1801.Purpose.

The purpose of these sections is to establish rules for acceptance of private donations and to establish standards of conduct to govern the relationships between officers and employees of the Division for Blind Services [ ~~Texas Commission for the Blind~~ ] and private donors.

§106.1803.Definitions.

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

(1) Division [ ~~Commission~~ ]--the Division for Blind Services [ ~~Texas Commission for the Blind~~ ].

(2) Employee--A regular, acting, or exempt, full- or part-time employee of the Division [ ~~commission~~ ].

~~[ ~~(3)~~ Officer--A member of the commission's governing board].~~

(3) [ ~~(4)~~ ] Private donor--One or more individuals or organizations that offer to give or give nonpublic financial assistance to the Division [ ~~commission~~ ].

§106.1805.Acceptance of Donations.

(a) Donations in the amount of $500 or more shall be considered by the Assistant Commissioner, Division for Blind Services [ ~~Commission's governing board~~ ] for acceptance according to Government Code, Chapter 575. Donations in the amount of $499 or less shall be accepted upon determination of the Assistant Commissioner [ ~~Commission's executive director~~ ] that the donation is for purposes consistent with Human Resources Code, Chapter 91.

(b) Donations of real property (real estate) shall be accepted by the Division [ ~~Commission~~ ] only upon authorization of the legislature.

§106.1807.Solicitation.

The solicitation of donations by the Division [ ~~Commission~~ ] shall be limited to purposes consistent with Human Resources Code, Chapter 91.

§106.1809.Investing.

All donations shall be deposited into the state treasury for investment and the Division [ ~~Commission~~ ] shall expend same in accordance with the provisions of state law.

§106.1811.Restricted/Unrestricted.

(a) Conditional or restrictive donations for purposes specified by the donor may be accepted if the conditions are consistent with the approved purposes of the Division [ ~~Commission~~ ] and consistent with state laws and these rules. Upon acceptance, restrictive donations shall be used only for purposes specified by the donor.

(b) Unconditional donations shall be used to carry out the approved purposes of the Division [ ~~Commission~~ ], consistent with state laws and these rules.

§106.1813.Transfer.

No donations shall be transferred by the Division [ ~~Commission~~ ] to a private or public development fund or foundation unless the Division [ ~~Commission~~ ] has received written permission for the transfer from the donor or the donor's representative, if applicable.

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 April 30, 2007.

TRD-200701665

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Chapter 107. DIVISION FOR REHABILITATION SERVICES

The Texas Health and Human Services Commission proposes amendments to the rules of the Department of Assistive and Rehabilitative Services, in Title 40, Part 2, Chapter 107, concerning Rehabilitation Services. This proposal repeals Subchapters A, D, and M in their entirety. Subchapter N contains three rules that are repealed and a few amendments. Specifically, this proposal repeals the following: Subchapter A, Texas Rehabilitation Advisory Council, §§107.11, 107.13, 107.15, 107.17, and 107.19; Subchapter B, Vocational Rehabilitation Services Program, Division 4, Eligibility, Ineligibility, and Certification, §107.193; Subchapter D, Extended Rehabilitation Services Program, §§107.601, 107,603, 107.605, 107.607, and 107.609; Subchapter M, Transition Planning Program, §§107.1401, 107.1403, and 107.1405; Subchapter N, Memoranda of Understanding With Other State Agencies, §§107.1611, 107.1615, and 107.1617. This proposal amends Subchapter B, Vocational Rehabilitation Services Program, Division 1, Provision of Vocational Rehabilitation Services, §§107.101, 107.103, 107.107, 107.109, 107.111, 107.113, 107.115, 107.117, 107.119, 107.121, 107.123, 107.125, 107.127, 107.129, 107.131, 107.133, 107.135, and 107.137; and adds new §107.139; Division 2, Client Participation, §107.151 and §107.153; Division 3, Comparable Benefits, §§107.171, 107.173, and 107.175; Division 4, Eligibility and Ineligibility, §107.191 and §107.197; and adds new §107.193; Division 5, Methods of Administration of Vocational Rehabilitation, §§107.215, 107.217, 107.221, 107.223, and 107.225; Subchapter F, Independent Living Services Program, §§107.801, 107.803, 107.805, and 107.807; and adds new §107.811; Subchapter L, Comprehensive Rehabilitation Services, §107.1203 and §107.1209; and Subchapter N, Memoranda of Understanding with Other State Agencies, §107.1607.

This proposal also changes the title of Chapter 107 from "Rehabilitation Services" to "Division for Rehabilitation Services."

Elsewhere in this issue of the Texas Register , the Department of Assistive and Rehabilitative Services contemporaneously proposes the repeal of Subchapter G, Durable Medical Equipment and Assistive Technology Listing, §§107.1001, 107.1003, 107.1005, 107.1007, 107.1009, 107.1011, and 107.1013.

The changes are being proposed to clarify and update program rules from the former Texas Rehabilitation Commission, which was consolidated into the Department of Assistive and Rehabilitative Services in 2004, into rule applicable to programs now administered by the Division for Rehabilitation Services, Department of Assistive and Rehabilitative Services, as provided by House Bill 2292, 78th Legislature, Regular Session.

Bill Wheeler, Chief Financial Officer, Department of Assistive and Rehabilitative Services, estimates that, for each year of the first five years that the 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 rules will be in effect, the public benefit anticipated as a result of adopting the proposed rules 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. 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 rules will not affect a local economy.

Subchapter A. TEXAS REHABILITATION ADVISORY COUNCIL

40 TAC §§107.11, 107.13, 107.15, 107.17, 107.19

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

§107.11.Establishment.

§107.13.Definitions.

§107.15.Composition and Appointment.

§107.17.Functions of the Council.

§107.19.Resources.

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 April 30, 2007.

TRD-200701666

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Subchapter B. VOCATIONAL REHABILITATION SERVICES PROGRAM

1. PROVISION OF VOCATIONAL REHABILITATION SERVICES

40 TAC §§107.101, 107.103, 107.107, 107.109, 107.111, 107.113, 107.115, 107.117, 107.119, 107.121, 107.123, 107.125, 107.127, 107.129, 107.131, 107.133, 107.135, 107.137, 107.139

The amendments and new rule 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.

§107.101.Basic Criteria.

The Vocational Rehabilitation Services Program is a joint state-federal funded program. The Division [ ~~commission~~ ] cooperates with the federal government in carrying out the rehabilitation of individuals with disabilities under state and federal law and to this end adopts such methods of administration as are found by the federal government to be necessary and not contrary to existing state laws for the proper and efficient operation of such rehabilitation program. The Division [ ~~commission~~ ] complies with such requirements as may be necessary to obtain federal funds in the maximum amount and most advantageous proportion authorized.

§107.103.Organization for Vocational Rehabilitation Services.

(a) For purposes of field operation, the state is divided into geographical regions with a regional director in charge of each region. The regional director is responsible for the supervision, planning, and direction of vocational rehabilitation services in the [ ~~his~~ ] region.

(b) (No change.)

(c) Counselors assigned to each region have the responsibility of making the initial determination as to eligibility for vocational rehabilitation services and to provide such services in accordance with policies and procedures of the Division [ ~~commission~~ ].

§107.107.Preliminary and Comprehensive Assessment.

(a) Preliminary assessment. To determine whether an individual is eligible for vocational rehabilitation services, the Division [ ~~commission~~ ] conducts a preliminary assessment sufficient to determine eligibility based on :

(1) a determination that [ ~~whether~~ ] the individual has a physical or mental impairment;

(2) a determination that [ ~~whether~~ ] the physical or mental impairment constitutes or results in a substantial impediment to employment for the individual;

(3) a determination that [ ~~whether~~ ] the individual can benefit in terms of achieving an employment outcome, after receiving vocational rehabilitation services; and

(4) a presumption that the individual can benefit in terms of an employment outcome from the provision of vocational rehabilitation services [ whether the individual requires VR services to prepare for, enter into, engage in, or retain gainful employment consistent with the individuals strengths, resources, priorities, concerns, abilities, capabilities, and informed choice ].

(b) Comprehensive assessment. The Division [ ~~commission~~ ], as appropriate in each case, shall conduct a comprehensive assessment of the unique strengths, resources, priorities, concerns, abilities, capabilities, interests, and needs, including the need for supported employment services, of an eligible individual, in the most integrated setting possible, consistent with the informed choice of the individual. The comprehensive assessment is limited to information that is necessary to identify the rehabilitation needs of the individual and develop the IPE and may, to the extent needed, include:

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

(c) Existing information. The Division [ ~~commission~~ ] shall use, to the maximum extent possible and appropriate and in accordance with confidentiality requirements, existing information, including information that is provided by the individual, the family of the individual, and education agencies.

§107.109.Counseling, Guidance, and Referral.

The Division [ ~~commission~~ ] provides counseling, guidance, and referral services as necessary for the vocational rehabilitation of consumers [ ~~clients~~ ]. Counseling is a process in which a vocational rehabilitation counselor works in a face-to-face relationship with consumers [ ~~a client~~ ] in order to help the consumers [ ~~clients~~ ] understand both [ ~~his~~ ] problems and [ ~~his~~ ] vocational potential. Counseling is a continuous process throughout the consumer's [ ~~client's~~ ] rehabilitation program to help [ ~~him~~ ] make the best possible vocational, personal, and social adjustment. Referral means referral of the consumer [ ~~client~~ ] to other agencies for assistance not available from the Division [ ~~commission~~ ].

§107.111.Physical Restoration Services.

(a) The Division [ ~~commission~~ ] provides physical restoration services which are necessary to correct or substantially modify an individual's physical condition within a reasonable period of time. The physical conditions for which such services are rendered must be stable or slowly progressive.

[(b) Before the commission initiates any type of physical restoration, exclusive of prosthetic or orthotic devices, speech or hearing therapy, or psychological services, the client or, as appropriate, his parent, guardian, or other representative, must complete and sign the physical restoration application form of the commission.]

(b) [ ~~(c)~~ ] The Division [ ~~commission~~ ] does not provide prenatal or postnatal care.

§107.113.Mental Restoration Services.

(a) The Division [ ~~commission~~ ] provides mental restoration services for mental conditions which are stable or slowly progressive.

(b) The Division [ ~~commission~~ ] provides psychiatric treatment as a limited service on a short-term basis only.

(c) The Division [ ~~commission~~ ] provides psychotherapy [ ~~psychological counseling~~ ] as a limited service only to support the completion or achievement of the vocational objective.

(d) The Division [ ~~commission~~ ] provides mental restoration services utilizing only physicians licensed by the state and skilled in the diagnosis and treatment of mental or emotional disorders, psychologists licensed or certified in accordance with state law, Licensed Master Social Workers [ ~~master social workers~~ ]-advanced clinical practitioners who are licensed by the Texas State Board of Social Work Examiners or Licensed Professional Counselors who are licensed by the Texas State Board of Examiners of Professional Counselors.

§107.115.Vocational and Other Training Services.

(a) The Division purchases [ ~~commission provides~~ ] vocational and other training services for those Consumers [ ~~to those clients~~ ] who require additional knowledge or skills to enter employment consistent with their aptitudes and ability, and compatible with their physical or mental impairments.

(b) The Division purchases [ ~~commission provides~~ ] vocational and other training through an appropriate facility. These facilities include accredited colleges and universities; certified public or private businesses; technical and vocational schools; on-the-job training; correspondence course training; tutorial training; and community rehabilitation program [ ~~facility~~ ] training.

(c) The Division [ ~~commission~~ ] requires that each consumer [ ~~client~~ ] who is provided with vocational or other training services by the Division [ ~~commission~~ ] apply for financial assistance where reasonably available. This assistance can include federal, state, or local grants-in-aid, and private scholarships where applicable. If the consumer [ ~~client~~ ] has not done so prior to the time of application for vocational rehabilitation services, the counselor assists the consumer [ ~~client~~ ] in doing so.

(d) The Division [ ~~commission~~ ] does not pay the nonresident fee to a college or university outside Texas if the course is available at a school within Texas, but does pay tuition at the same rate as would have been paid to a comparable college in Texas.

(e) The Division [ ~~commission~~ ] will not pay tuition and fees to a business, technical, or vocational school in excess of the published fees. Textbooks supplied to consumers [ ~~client~~ ] of the Division [ ~~commission~~ ] become the property of the consumer [ ~~client~~ ] provided the consumer [ ~~client~~ ] finishes the prescribed training and enters a field of employment compatible with the employment goal [ ~~vocational objective~~ ]. If the consumer [ ~~client~~ ] drops out of training or enters employment not related to the vocational objective, the textbooks remain the property of the Division [ ~~commission~~ ].

§107.117.Maintenance.

The Division [ ~~commission~~ ] may pay maintenance to a consumer [ ~~client~~ ]. Maintenance is a [ ~~cash~~ ] payment to a consumer [ ~~an applicant or client~~ ] made during any stage of the rehabilitation process to cover basic living expenses, such as food, shelter, clothing, and other subsistence expenses that are in excess of the normal expenses of the consumer [ ~~client~~ ], and are necessary to derive the full benefit of other vocational rehabilitation services.

§107.119.Transportation.

The Division [ ~~commission~~ ] may pay for [ ~~provide~~ ] transportation services for consumers [ ~~to applicants and clients~~ ] in connection with other vocational rehabilitation services.

§107.121.Interpreter Services for the Deaf.

(a) The Division [ ~~commission~~ ] may provide interpreter services for consumers [ ~~clients~~ ] who are deaf when such services will assist in the attainment of the rehabilitation objective.

(b) The Division [ ~~commission~~ ] may provide telecommunications, sensory, and other technological aids and devices to facilitate training, employability, and job opportunities for persons with significant [ ~~severe~~ ] disabilities, particularly persons who are deaf and individuals with profound hearing or speech impairments.

§107.123.Job Placement.

(a) The principal objective is a competitive employment outcome for each consumer [ ~~client~~ ] which is consistent with the individual's strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice.

(b) Employment [ ~~Gainful employment~~ ] outcomes include [ ~~includes~~ ] entering or retaining full-time or, if appropriate, part-time competitive employment in the integrated [ ~~competitive~~ ] labor market; supported employment; or any other type of employment in an integrated setting, including [ ~~the practice of a profession;~~ ] self-employment; telecommuting, or business ownership. [ ~~homemaking; farm or family work; sheltered employment; homebound employment; or other gainful work.~~ ]

§107.125.Postemployment Services.

(a) The Division [ ~~commission~~ ] may provide postemployment services to consumers [ ~~clients~~ ] who have been determined rehabilitated in order to maintain or strengthen the consumer's [ ~~client's~~ ] employment.

(b) (No change.)

§107.127.Occupational Licenses, Tools, Equipment, and Training Supplies.

(a) The Division [ ~~commission~~ ] may engage in or contract for activities to provide consumers [ ~~clients~~ ] with occupational licenses, including any license, permit, or other written authority required by a state, city, or other governmental unit to be obtained in order to enter an occupation or self-employment.

(b) The Division [ ~~commission~~ ] may provide consumers [ ~~clients~~ ] with tools, equipment, initial stocks, goods, and supplies necessary to enter an occupation or self-employment.

(c) Consumers [ ~~clients~~ ] shall safeguard and maintain in a serviceable condition tools and equipment and will not wrongfully dispose of them.

(d) Consumers [ ~~clients~~ ] shall sign a prescribed agreement form at the time they receive tools and equipment.

§107.129.Extended Evaluation.

(a) Extended evaluation is used only to determine whether an applicant with a significant [ ~~severe~~ ] disability is capable of achieving an employment outcome.

(b) The Division [ ~~commission~~ ] provides only those vocational rehabilitation services necessary to determine if the individual is capable of achieving an employment outcome. [ ~~the nature and scope of services required to achieve a gainful employment outcome for a total period not in excess of 18 months.~~ ] Services are provided in the most integrated setting possible, consistent with the informed choice of the individual.

(c) The Division [ ~~commission~~ ] may terminate extended evaluation services at any time [ ~~prior to the expiration of the 18-month period~~ ] when:

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

(d) Where an individual is determined ineligible for vocational rehabilitation services after extended evaluation, the Division conducts a periodic review at least annually of the ineligibility decision in which the individual is afforded a clear opportunity for full consultation in the reconsideration of such decision. A periodic review is not required when the individual has refused services, has refused a periodic review, is no longer present in the state, the individual's whereabouts unknown, or the medical condition is rapidly progressive or terminal.

§107.131.Individualized Plan for Employment.

(a) The Division [ ~~commission~~ ] initiates and continuously develops an individualized plan for employment for each individual eligible for vocational rehabilitation services and for each individual being provided such services in extended evaluation.

(b) The counselor and consumer [ ~~client~~ ] or, as appropriate, the consumer's [ ~~client's~~ ] parent, guardian, or other representative use information obtained during the assessment process to assist the consumer in making informed choices about [ ~~determine~~ ] vocational rehabilitation needs, employment [ ~~long term vocational~~ ] goal, intermediate rehabilitation objectives, and the nature and scope of vocational rehabilitation services and the service providers to be included in the IPE.

(c) The consumer may develop all or part of the IPE with or without assistance from a DRS Counselor, a qualified vocational rehabilitation counselor not employed by DRS, or another resource outside of DRS. DRS will not pay for assistance with IPE development. The IPE is not final until approved by the counselor. [ The counselor and the client or, as appropriate, the client's parent, guardian, or other representative develop jointly the individualized plan for employment, which is consistent with the individual's unique strengths, priorities, concerns, abilities, capabilities, career interests, and informed choice. ] A copy of such program and any amendments thereto are provided to the consumer [ ~~client~~ ] or, as appropriate, the consumer's [ ~~client's~~ ] parent, guardian, or other representative.

(d) (No change.)

(e) The counselor shall advise the consumer [ ~~client~~ ] of the consumer's [ ~~client's~~ ] rights and the means by which the consumer [ ~~client~~ ] may express and seek remedy for dissatisfaction with the program, including the opportunity for an administrative review of Division [ ~~commission~~ ] action and a fair hearing in accordance with the Administrative Procedure and Texas Register Act, §13 and §14.

(f) The counselor reviews the individualized plan for employment as often as necessary, but at least on an annual basis, at which time each consumer [ ~~client~~ ], or as appropriate, the consumer's [ ~~client's~~ ] parent, guardian, or other representative, is [ ~~are~~ ] afforded an opportunity to review such program and, if necessary, jointly redevelop its terms.

[(g) Where an individual is determined ineligible for vocational rehabilitation services after extended evaluation, the commission conducts a periodic review at least annually of the ineligibility decision in which the individual is afforded a clear opportunity for full consultation in the reconsideration of such decision. A periodic review is not required when the individual has refused services, has refused a periodic review, is no longer present in the state, the individual's whereabouts unknown, or the medical condition is rapidly progressive or terminal.]

(g) [ ~~(h)~~ ] The individualized plan for employment is a joint commitment which [ ~~generally~~ ] must be signed by both the counselor and the individual.

(h) [ ~~(i)~~ ] The Division [ ~~commission~~ ] may provide only those goods and services which can reasonably be expected to benefit an individual with a disability in terms of employment [ ~~employability~~ ].

§107.133.Cooperative Programs Utilizing Third-Party Funds.

When the Division [ ~~commission~~ ] enters into a third-party cooperative arrangement for providing or administering vocational rehabilitation services with another state agency or a local public agency that is furnishing part or all of the non-federal share, the state plan will assure that:

(1) (No change.)

(2) the services provided by the cooperating agency are only available to applicants for, or recipients of, services from the Division [ ~~commission~~ ];

(3) program expenditures and staff providing services under the cooperative arrangement are under the administrative supervision of the Division [ ~~commission~~ ]; and

(4) (No change.)

§107.135.Participation in Political Activity.

Employees of the Division [ ~~commission~~ ] engaged in day-to-day administration and operation of the vocational rehabilitation program will not engage in political activity prohibited by the Hatch Act, 5 United States Code, Chapter 1501, or state law.

§107.137.Consultation Regarding the Administration of the State Plan.

(a) The state plan must assure that, in connection with matters of general policy development and implementation arising in the administration of the state plan, the Division [ ~~commission~~ ] seeks and takes into account the views of:

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

(b) The state plan must specifically describe the manner in which the state unit will take into account the views regarding state policy and administration of the state plan that are expressed in the consumer satisfaction surveys conducted by the State Rehabilitation Council under 34 CFR §361.17(h)(3) or by the state agency if it is an independent Division [ ~~commission~~ ] in accordance with the requirements of 34 CFR §361.16(a)(1).

§107.139.Definitions.

Words and terms are used in this chapter as defined in the Rehabilitation Act of 1973, as amended, and implemented by 34 Code of Federal Regulations and the Human Resources Code, Title 7, unless the context clearly indicates another meaning. Words and terms defined in such federal and state laws and regulations are applicable to this chapter. In addition, the following definitions apply:

(1) Applicant--An individual who applies to the Department of Assistive and Rehabilitative Services for vocational rehabilitation services, comprehensive rehabilitation services, or independent living services.

(2) Consumer--An individual with a disability who is determined eligible by the Department of Assistive and Rehabilitative Services for vocational rehabilitation services, comprehensive rehabilitation services, independent living services, or other department services.

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

Filed with the Office of the Secretary of State on April 30, 2007.

TRD-200701667

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

2. CLIENT PARTICIPATION

40 TAC §107.151, §107.153

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

§107.151.Basic Living Requirements (BLR).

(a) The purpose of basic living requirements (BLR) is to establish a framework for determining whether the consumer [ ~~client~~ ] should pay any of the service cost. The Division [ ~~commission~~ ] does not consider the table of basic living requirements in determining eligibility for vocational rehabilitation services; however, the Division [ ~~commission~~ ] does apply the table of basic living requirements to determine whether the consumer [ ~~client~~ ] must contribute to the cost of certain services.

(b) All services are subject to required consumer [ ~~client~~ ] participation except for the following:

(1) services paid for, or reimbursed by, a source other than the Division [ ~~commission~~ ];

(2) counseling, guidance, and referral provided by DARS [ ~~TRC~~ ] staff;

~~[(3) placement services;]~~

(3) [ ~~(4)~~ ] assessment services, to determine eligibility and determining rehabilitation needs [ ~~including diagnostic maintenance and transportation, in any status~~ ];

(4) [ ~~(5)~~ ] interpreter services; [ ~~and/or~~ ]

(5) reader services;

(6) translator services ; [ . ]

(7) personal assistant services; and/or

(8) job related services: job placement, job quest training, services leading to supported employment, and job coach services.

(c) Consumers who are recipients of Social Security disability benefits, either SSI or SSDI, are not required to participate in the cost of services.

§107.153.Equitable Treatment and Notice.

(a) The Division [ ~~commission~~ ] applies the table of basic living requirements uniformly to assure that equitable treatment is accorded all consumers [ ~~clients~~ ] in similar circumstances.

(b) The counselor will inform each consumer [ ~~client~~ ] of the services which require consumer [ ~~client~~ ] participation in the cost of services and those services which do not require consumer [ ~~client~~ ] participation.

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 April 30, 2007.

TRD-200701668

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

3. COMPARABLE BENEFITS

40 TAC §§107.171, 107.173, 107.175

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

§107.171.Comparable Services and Benefits.

If comparable services or benefits exist under any other program and are available to the eligible individual at the time needed to achieve the rehabilitation objective in the individual's IPE the Division [ ~~commission~~ ] shall use those comparable services or benefits to meet, in whole or in part, the cost of vocational rehabilitation services.

§107.173.Availability of Comparable Services and Benefits.

The Division [ ~~commission~~ ] determines whether comparable services or benefits are available under any other program or law to the consumer [ ~~client~~ ] to meet, in whole or in part, the cost of any VR services. The Division [ ~~Commission~~ ] shall use all available comparable services or benefits to meet, in whole or in part, the cost of vocational rehabilitation services. The Division [ ~~commission~~ ] will not make this determination in cases where:

(1) the determination of the availability of comparable services and benefits under any other program would delay the provision of vocational rehabilitation services to any individual who is determined to be at extreme medical risk, based on medical evidence provided by an appropriate qualified medical professional; [ or ]

(2) an immediate job placement would be lost due to a delay in the provision of comparable services and benefits ; or [ . ]

(3) the determination will interrupt or delay progress toward achieving the employment outcome on the IPE.

§107.175.Maximum Utilization of Community Resources.

In providing vocational rehabilitation services, the Division [ ~~commission~~ ] utilizes, to the maximum extent possible, public and other vocational or technical training facilities and other appropriate resources in the community.

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 April 30, 2007.

TRD-200701669

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

4. ELIGIBILITY AND INELIGIBILITY

40 TAC §§107.191, 107.193, 107.197

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

§107.191.Basic Requirements for Eligibility.

(a) The Division [ ~~commission~~ ] bases eligibility for vocational rehabilitation (VR) services on the following requirements only.

(b) The Division [ ~~applicant~~ ] must:

(1) determine that the applicant has a physical or mental impairment;

(2) determine that the impairment constitutes or results in a substantial impediment to employment;

(3) establish that the applicant requires VR services to prepare for, enter, engage in, or retain gainful employment consistent with the individual's strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice; and

(4) presume that the applicant is capable of achieving an employment outcome, unless there is a demonstration by clear and convincing evidence in extended evaluation that the applicant is incapable of achieving an employment outcome due to the severity of the individual's disability.

~~[(1) have a physical or mental disability that constitutes or results in a substantial impediment for the individual to employment; and]~~

~~[(2) be capable of achieving an employment outcome, after receiving VR services; and]~~

[(3) require VR services to prepare for, enter, engage in, or retain gainful employment consistent with the applicant's strengths, resources, priorities, concerns, abilities, capabilities, and informed choice.]

§107.193.Prohibited Factors.

(a) The Division will not impose, as part of determining eligibility under this subchapter, a duration of residence requirement that excludes from services any applicant who is present in the state.

(b) In making a determination of eligibility under this subchapter, the Division will ensure that:

(1) No applicant or group of applicants is excluded or found ineligible solely on the basis of the type of disability; and

(2) The eligibility requirements are applied without regard to the:

(A) age, gender, race, color, or national origin of the applicant;

(B) type of expected employment outcome;

(D) particular service needs or anticipated cost of services required by an applicant or the income level of an applicant or applicant's family.

§107.197.Determination of Ineligibility.

When an applicant is determined ineligible for vocational rehabilitation services or an individual receiving services under an IPE is no longer eligible for services, the Division [ ~~commission~~ ] shall:

(1) make the determination only after providing an opportunity for full consultation with the individual or, as appropriate, the individual's representative;

(2) inform the individual in writing, supplemented as necessary by other appropriate modes of communication consistent with the informed choice of the individual, of the ineligibility determination, including the reasons for that determination and the means by which the individual may express and seek remedy for any dissatisfaction, including the procedures for review of a determination by the rehabilitation counselor [ ~~or coordinator~~ ];

(3) provide the individual with a description of services available from a Client Assistance Program [ ~~client assistance program~~ ] established under 34 CFR Part 370 and information on how to contact that program; and

(4) review within 12 months and annually thereafter, if requested by the individual or, if appropriate, by the individual's representative any ineligibility determination that is based on a finding that the individual is incapable of achieving an employment outcome. This review need not be conducted in situations where the individual has refused it, the individual is no longer present in the state, the individual's whereabouts are unknown, or the individual's medical condition is rapidly progressive.

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 April 30, 2007.

TRD-200701671

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

40 TAC §107.193

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

§107.193.Factors Disregarded in Determining Eligibility.

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 April 30, 2007.

TRD-200701670

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 1007

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

5. METHODS OF ADMINISTRATION OF VOCATIONAL REHABILITATION

40 TAC §§107.215, 107.217, 107.221, 107.223, 107.225

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

§107.215.Statewide Studies and Program Evaluation.

(a) The Division [ ~~commission~~ ] conducts continuing statewide studies of the needs of individuals with disabilities within the state and the methods by which these needs may be most effectively met.

(b) Such studies are directed toward:

(1) assessing [ ~~assessment~~ ] of the rehabilitation needs of individuals with significant [ ~~severe~~ ] disabilities who reside in the state;

(2) reviewing [ ~~review of~~ ] the effectiveness of outreach procedures used to identify and serve individuals with disabilities who are minorities and individuals with disabilities who are unserved and underserved by the vocational rehabilitation system; and

(3) reviewing [ of ] a broad variety of methods to provide, expand, and improve vocational rehabilitation services to individuals with the most significant [ ~~severe~~ ] disabilities, including individuals receiving supported employment services;

(4) ensuring the orderly and effective development of vocational rehabilitation services; and

(5) reviewing the efficacy of the criteria employed by the Division [ ~~commission~~ ] in making ineligibility decisions with respect to applicants for vocational rehabilitation services. Reports of such studies are available to the public for review.

§107.217.Annual Evaluation.

(a) The Division [ ~~commission~~ ] conducts an annual comprehensive evaluation of the effectiveness of the state's vocational rehabilitation program in achieving:

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

(b) The evaluation measures the adequacy of Division [ ~~commission~~ ] performance in providing vocational rehabilitation services, especially to those individuals with the most significant [ ~~severe~~ ] disabilities, in [ ~~the~~ ] light of the state's vocational rehabilitation program financial resources. The evaluation has the following minimum objectives:

(1) to insure that the rehabilitation program is serving the target population and these services are provided in an equitable manner;

(2) to insure that consumers [ ~~clients~~ ] are placed in gainful employment suitable to their capabilities, interest, and informed choice;

(3) to measure the extent to which undue delays are avoided in providing consumers [ ~~clients~~ ] with services;

(4) to insure that available resources are utilized effectively to achieve maximum operational efficiency;

(5) to insure that counselors maintain manageable-sized caseloads and provide timely and adequate services to individual consumers [ ~~clients~~ ];

(6) to insure that consumers [ ~~clients~~ ] retain the benefits obtained from the rehabilitation process;

(7) to insure that the need for postemployment services is satisfied;

(8) to identify reasons why consumers [ ~~clients~~ ] are not successfully rehabilitated; and

(9) to insure that the consumer [ ~~client~~ ] is satisfied with the [ ~~his~~ ] individualized plan for employment.

§107.221.Periodic Reevaluation of Extended Employment.

(a) The Division [ ~~commission~~ ] reviews and reevaluates annually, for two years and thereafter if requested [ ~~or more often if required,~~ ] the status of each individual who has chosen employment in a non-integrated setting. [ determined by the state unit to have achieved an employment outcome in an extended employment setting in a community rehabilitation program or other employment setting in which the individual is compensated in accordance with the Fair Labor Standards Act, §14(c). ] This review or reevaluation must include input from the individual or in an appropriate case, the individual's representative to determine the interests, priorities, and needs of the individual for competitive employment in an integrated setting in the labor market.

(b) The Division [ ~~commission~~ ] makes maximum effort, including the identification of vocational rehabilitation services, reasonable accommodations, and other support services, to enable the eligible individual to benefit from training in, or to be placed in employment in, an integrated setting.

(c) The Division [ ~~commission~~ ] provides services designed to promote movement from extended employment to integrated employment, including supported employment, independent living, and community participation.

§107.223.Individuals Determined To Be Rehabilitated.

(a) The Division [ ~~commission~~ ] determines a consumer [ ~~client~~ ] to be rehabilitated when the following requirements are met:

(1) the provision of services under the individual's IPE has contributed to the achievement of the employment outcome;

(2) the employment outcome is consistent with the individual's strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice; and

(3) the employment outcome is in an [ ~~the most~~ ] integrated setting [ ~~possible, consistent with the individual's informed choice~~ ];

(4) the individual has maintained the employment outcome for a period of at least 90 days; and

(5) the individual and the rehabilitation counselor consider the employment outcome to be satisfactory and agree that the individual is performing well on the job.

(b) After a consumer [ ~~client~~ ] has been determined to be rehabilitated, the Division [ ~~commission~~ ] may provide postemployment services as required to maintain or regain suitable employment.

§107.225.Training and Supervision of Counselors.

The Assistant Commissioner for Rehabilitation Services [ ~~Deputy Commissioner for Field/External Operations~~ ] is accountable for the monitoring and oversight of Vocational Rehabilitation Counselor performance and decision making in the following areas listed in paragraphs (1) - (5) of this section:

(1) the selection of employment goals [ ~~vocational objectives~~ ] according to a consumer's [ ~~client's~~ ] skills, experience, and knowledge;

(2) the documenting of a consumer's [ ~~client's~~ ] impediment to employment;

(3) the selection of rehabilitation services that are reasonable and necessary to achieve a consumer's employment goal [ ~~client's vocational objective~~ ];

(4) the measurement of consumer [ ~~client~~ ] progress toward the vocational objective, including the documented, periodic evaluation of the consumer's [ ~~client's~~ ] rehabilitation and participation; and

(5) the determination of eligibility of employed and unemployed applicants for rehabilitation services using criteria set forth in §107.191 of this title (relating to Basic Requirements for Eligibility) [ ~~, defined by board rule~~ ] to document whether a consumer [ ~~client~~ ] is eligible for services [ ~~substantially underemployed or at risk of losing employment~~ ].

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 April 30, 2007.

TRD-200701672

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Subchapter D. EXTENDED REHABILITATION SERVICES PROGRAM

40 TAC §§107.601, 107.603, 107.605, 107.607, 107.609

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

§107.601.Purpose.

§107.603.Availability of Services.

§107.605.Basic Requirements for Eligibility.

§107.607.Ineligibility.

§107.609.Services Provided.

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 April 30, 2007.

TRD-200701673

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Subchapter F. INDEPENDENT LIVING SERVICES PROGRAM

40 TAC §§107.801, 107.803, 107.805, 107.807, 107.811

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

§107.801.Purpose.

(a) The purpose of the Independent Living Services Program is to provide rehabilitation services to individuals with significant [ ~~severe or catastrophic~~ ] disabilities when they are necessary to [ ~~in order that such persons may~~ ] achieve a greater level of self-care and independent living.

(b) The Independent Living Services Program is a joint state-federal program. All federal laws and regulations required by the acceptance of these funds by the state are applicable to these rules.

§107.803.Basic Requirements for Eligibility.

An individual meets the basic requirements for eligibility if [ ~~he is a person with a severe or catastrophic disability under current published commission regulations and there is~~ ]:

(1) the individual has a significant physical, mental, cognitive or sensory disability that interferes with the ability to remain or become independent in the family, home or community; and

(2) independent living services are needed to improve the individual's ability to be independent, maintain independence, or move towards independence in the family, home or community by decreasing the amount of assistance and/or supervision needed to perform daily activities.

~~[(1) the presence of a physical or mental disability which constitutes or results in a substantial impediment to the individual's ability to function independently in his family or community; and]~~

~~[(2) a reasonable expectation that independent living services will benefit the individual in terms of improving his ability to function independently in his family or community; and]~~

~~[(3) compliance with the basic living requirements table.]~~

§107.805.Ineligibility.

An individual becomes ineligible for independent living services when there is no presence of a significant disability and/or independent living services are not required to be independent, maintain independence or move towards independence in the home, family or community. [ An individual becomes ineligible for independent living services when the provision of such programmed services would be ineffective in achieving their purpose of a greater level of self-care and independent living. ]

§107.807.Services Provided.

The provisions of independent living services include:

(1) counseling and guidance;

(2) advocacy/self services;

(3) independent living skills training;

(4) information and referral;

(5) peer counseling;

(6) provision of and training in the use of assistive devices/equipment;

(7) training family members to assist IL consumer to live more independently;

(8) mobility training;

(9) personal assistance services;

(10) preventive services;

(11) prosthesis, orthotics and other appliances;

(12) access to public transportation;

(13) adult basic education;

(14) youth to adult transition services;

(15) therapeutic treatment;

(16) restoration services;

(17) interpreter services; and

(18) modification of vehicles and residences.

~~[(1) counseling and guidance;]~~

~~[(2) training;]~~

~~[(3) adult basic education;]~~

~~[(4) rehabilitation facility training;]~~

~~[(5) maintenance;]~~

~~[(6) transportation;]~~

~~[(7) restoration services;]~~

~~[(8) interpreter services; and]~~

~~[(9) modification of vehicles and residences.]~~

§107.811.Consumer Participation.

(a) The purpose of basic living requirements (BLR) is to establish a framework for determining whether the consumer should pay any of the service cost. The Division does not consider the table of basic living requirements in determining eligibility for independent living services; however, the Division does apply the table of basic living requirements to determine whether the consumer must contribute to the cost of certain services.

(b) All services are subject to required consumer participation except for the following:

(1) services paid for, or reimbursed by, a source other than the Division;

(2) counseling, guidance, and referral provided by DARS staff;

(3) assessment services, to determine eligibility and determining independent living needs, including any associated maintenance and transportation;

(4) interpreter services;

(5) reader services; and/or

(6) translator services.

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

Filed with the Office of the Secretary of State on April 30, 2007.

TRD-200701674

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Subchapter L. COMPREHENSIVE REHABILITATION SERVICES

40 TAC §107.1203, §107.1209

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

§107.1203.Basic Requirements for Eligibility.

Basic criteria for eligibility include:

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

(5) individual must not currently be eligible for another Division for Rehabilitation Services [ ~~Texas Rehabilitation Commission~~ ] Program;

(6) - (7) (No change.)

§107.1209.Limitations of Services.

The following limitations apply to the Comprehensive Rehabilitation Services (CRS) Program.

(1) Inpatient comprehensive medical rehabilitation hospitalization services:

(A) in order to receive this service, at the time the individual is referred, no more than one year may have elapsed since the onset of injury;

~~[(B) the individual must be sufficiently medically stable to be able to actively plan and participate in a program of CRS;]~~

(B) [ ~~(C)~~ ] initial acute medical procedures are not permitted;

~~[(D) an individual with traumatic brain injury must be functioning at least at Rancho Level IV or equivalent (emerged from coma);]~~

~~[(E) sponsorship of CRS program services is dependent upon client eligibility and availability of funding;]~~

(C) [ ~~(F)~~ ] only inpatient facilities located within the State of Texas [ ~~which are Commission on Accreditation of Rehabilitation (CARF) certified~~ ] may be utilized;

(D) [ ~~(G)~~ ] sponsorship will be limited to a maximum of 90 days of inpatient comprehensive medical rehabilitation services.

(2) Outpatient services:

(A) in order to receive this service, at the time of referral [ , ] no more than two years may have elapsed since the onset of injury;

~~[(B) the individual must be sufficiently medically stable to be able to actively plan and participate in a program of CRS services;]~~

~~[(C) an individual with traumatic brain injury must be functioning at least at Rancho Scale Level IV, or equivalent (emerged from coma);]~~

(B) [ ~~(D)~~ ] services can be provided in any combination of those listed in §107.1207 of this title (relating to Services Provided) [ ~~this section~~ ], but the total number of hours of outpatient therapies [ ~~physical therapy, occupational therapy, and speech therapy~~ ] paid with CRS funds will not exceed 120 hours.

(3) Post-acute brain injury rehabilitation services:

(A) limited to individuals with traumatic brain injury;

(B) there is no time limitation since onset of injury;

~~[(C) an individual with traumatic brain injury must be functioning at least at Rancho Scale Level IV or equivalent (emerged from coma);]~~

(D) [ ~~(E)~~ ] sponsorship will be limited to a maximum of six months.

(4) At the time of discharge from services, prescribed drugs and medical supplies may not exceed a 30-day supply.

(5) If, during the course of services, the individual is not making the expected progress, the case will be re-evaluated to determine whether continued sponsorship is appropriate.

(6) If, during the course of services, the individual becomes eligible for another of the Division's [ ~~commission's~~ ] programs (independent living services, [ ~~extended rehabilitation services,~~ ] vocational rehabilitation, etc.), sponsorship of Comprehensive Rehabilitation Services [ ~~comprehensive medical rehabilitation services~~ ] will be shifted to that program immediately after eligibility determination.

(7) Sponsorship of CRS Program services is dependent upon consumer eligibility and availability of funding.

(8) An individual with traumatic brain injury must be functioning at least at Rancho Los Amigos Scale Level IV or equivalent (emerged from coma) in order to receive purchased services from this program.

(9) The individual must be sufficiently medically stable to be able to actively plan and participate in a program of CRS Services.

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

Filed with the Office of the Secretary of State on April 30, 2007.

TRD-200701675

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Subchapter M. TRANSITION PLANNING PROGRAM

40 TAC §§107.1401, 107.1403, 107.1405

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

§107.1401.Purpose.

§107.1403.Planning Services.

§107.1405.Interagency Coordination.

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 April 30, 2007.

TRD-200701676

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Subchapter N. MEMORANDA OF UNDERSTANDING WITH OTHER STATE AGENCIES

40 TAC §107.1607

The amendment is 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.

§107.1607.Coordinated Services for Children and Youths.

(a) The Department of Assistive and Rehabilitative Services [ ~~Texas Rehabilitation Commission~~ ] adopts by reference an amendment to a joint memorandum of understanding between the Texas Rehabilitation Commission and the Texas Department of Protective and Regulatory Services dated May 21, 1993 §702.405 [ ~~(§736.701~~ ] of this title (relating to Coordinated Services for Children and Youths) as amended in a proposal published on January 27, 1995 (20 TexReg 43) and adopted on March 10, 1995 (20 TexReg 1765).

(b) Copies of the memorandum of understanding are available from the Department of Assistive and Rehabilitative Services [ ~~Texas Rehabilitation Commission, Attention Larry Lottman~~ ], 4800 [ ~~4900~~ ] North Lamar Boulevard, Austin, Texas 78751.

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 April 30, 2007.

TRD-200701677

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

40 TAC §§107.1611, 107.1615, 107.1617

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

§107.1611.Memorandum of Understanding Concerning Coordinating the Delivery of Services to Deaf Persons and Reduce Duplication of Services.

§107.1615.Provision of Services to Individuals with Visual Handicaps.

§107.1617.Alcohol and Drug Abuse.

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

Filed with the Office of the Secretary of State on April 30, 2007.

TRD-200701678

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Chapter 107. REHABILITATION SERVICES

Subchapter C. DUE PROCESS HEARINGS AND MEDIATION BY APPLICANTS/CLIENTS CONCERNING DETERMINATIONS BY AGENCY PERSONNEL THAT AFFECT THE PROVISION OF VOCATIONAL REHABILITATION SERVICES

40 TAC §§107.401, 107.403, 107.405, 107.407, 107.409, 107.411, 107.413, 107.415

The Texas Health and Human Services Commission proposes changes to the rules of the Department of Assistive and Rehabilitative Services, Title 40, Part 2, Chapter 107, concerning Rehabilitation Services. This proposal repeals Subchapter C, §§107.401, 107.403, 107.405, 107.407, 107.409, 107.411, 107.413, and 107.415, concerning Due Process Hearings and Mediation by Applicants/Clients Concerning Determinations by Agency Personnel that Affect the Provision of Vocational Rehabilitation Services.

Elsewhere in this issue of the Texas Register the Department of Assistive and Rehabilitative Services contemporaneously proposes rules in Chapter 101, new Subchapter E, Appeals and Hearing Procedures for Vocational Rehabilitation and Independent Living Programs.

The repeal and new rules are being proposed to clarify and update program rules from the former Texas Rehabilitation Commission, which was consolidated into the Department of Assistive and Rehabilitative Services in 2004, into agency-wide appeals and hearings rules applicable to all vocational rehabilitation and independent living programs now administered by Department of Assistive and Rehabilitative Services, as provided by House Bill 2292, 78th Legislature, Regular Session.

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

§107.401.Purpose and Scope.

§107.403.Definitions.

§107.405.General Requirements.

§107.407.Mediation and Due Process Hearings.

§107.409.Motion for Reconsideration.

§107.411.Finality of the Hearing Officer's Decision.

§107.413.Civil Action.

§107.415.Time for Hearing.

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 April 30, 2007.

TRD-200701679

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Subchapter G. DURABLE MEDICAL EQUIPMENT AND ASSISTIVE TECHNOLOGY LISTING

40 TAC §§107.1001, 107.1003, 107.1005, 107.1007, 107.1009, 107.1011, 107.1013

The Texas Health and Human Services Commission proposes changes to the rules of the Department of Assistive and Rehabilitative Services, Title 40, Part 2, Chapter 107, relating to Rehabilitation Services. This proposal repeals all of Subchapter G, Durable Medical Equipment and Assistive Technology Listing, §§107.1001, 107.1003, 107.1005, 107.1007, 107.1009, 107.1011 and 107.1013.

Elsewhere in this issue of the Texas Register the Department of Assistive and Rehabilitative Services contemporaneously proposes new rules relating to Durable Medical Equipment and Assistive Technology Listing in a new Subchapter F of Chapter 101 of this title. The repeal and new rules are being proposed to clarify and update program rules from the former Texas Rehabilitation Commission, which was consolidated into the Department of Assistive and Rehabilitative Services in 2004, into rules applicable to programs now administered by the Division for Rehabilitation Services, Department of Assistive and Rehabilitative Services, as provided by House Bill 2292, 78th Legislature, Regular Session.

Mr. Wheeler also estimates that for each year of the first five years the repeal will be in effect, the public benefit anticipated as a result of the repeal of the rules 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 repeal as proposed. 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 repeal will not affect a local economy.

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

§107.1001.Legal Basis and Purpose.

§107.1003.Definition.

§107.1005.Listing Items for Donation.

§107.1007.Stickers for Retailers.

§107.1009.Referral of Individuals.

§107.1011.Local Organizations.

§107.1013.Contracting.

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 April 30, 2007.

TRD-200701680

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Chapter 108. DIVISION FOR EARLY CHILDHOOD INTERVENTION SERVICES

The Texas Health and Human Services Commission proposes changes to the rules of the Department of Assistive and Rehabilitative Services, in Title 40, Part 2, Chapter 108, relating to Division for Early Childhood Intervention Services. This proposal repeals Subchapter B, §108.65, concerning Opportunities for Citizen Participation. This proposal also repeals Subchapter C, §§108.85, 108.87, 108.89, and 108.91, concerning Early Childhood Intervention Advisory Committee. The substance of the repealed rules are being transferred to Chapter 101 of this title, relating to Administrative Rules and Procedures, into a new Subchapter A, General Rules, §101.105, and a new Subchapter D, Advisory Committees and Councils, §101.605. The proposals of which are being contemporaneously proposed elsewhere in this in this issue of the Texas Register .

Please note that on March 28, 2007, on the Department of Assistive and Rehabilitative Services' request, the title of Chapter 108 was changed by the Texas Register from "Early Childhood Intervention Services" to "Division for Early Childhood Intervention Services."

Comments on the proposal may be submitted to Barbara M. Lazard, Assistant General Counsel, Department of Assistive and Rehabilitative Services, 4800 North Lamar Boulevard, Suite 300, Austin, Texas 78756-3178.

Subchapter B. PROCEDURAL SAFEGUARDS AND DUE PROCESS PROCEDURES

40 TAC §108.65

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

§108.65.Opportunities for Citizen Participation.

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 April 30, 2007.

TRD-200701681

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Subchapter C. EARLY CHILDHOOD INTERVENTION ADVISORY COMMITTEE

40 TAC §§108.85, 108.87, 108.89, 108.91

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

§108.85.Purpose.

§108.87.Size, Composition, and Terms of Office.

§108.89.Advisory Committee Duties.

§108.91.Advisory Committee Procedures.

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 April 30, 2007.

TRD-200701682

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Chapter 109. DEAF AND HARD OF HEARING SERVICES

The Texas Health and Human Services Commission proposes amendments to the rules of the Department of Assistive and Rehabilitative Services in Title 40, Part 2, Chapter 109, concerning Deaf and Hard of Hearing Services. This proposal repeals Subchapter A, Specialized Telecommunications Assistance Program, Division 1, Definitions, §§109.1, 109.3, 109.5 and 109.7 and Division 2, Program Eligibility, §§109.31, 109.33, 109.35, 109.37, 109.39, 109.41, 109.43 and 109.45. A new Subchapter A, General Rules, §109.101 and §109.103 and a new Subchapter D, Specialized Telecommunications Assistance Program, §§109.401, 109.403, 109.405, 109.407, 109.409, 109.411, 109.413, 109.415 and 109.417 replaces the repealed sections.

The title of Chapter 109 will be changed from "Deaf and Hard of Hearing Services" to "Office for Deaf and Hard of Hearing Services."

The repeal and new rules are being proposed to clarify and update program rules from the former Texas Commission for the Deaf and Hard of Hearing, which was consolidated into the Department of Assistive and Rehabilitative Services in 2004, into rules applicable to programs now administered by the Office for Deaf and Hard of Hearing Services, Department of Assistive and Rehabilitative Services, as provided by House Bill 2292, 78th Legislature, Regular Session.

Elsewhere in this issue of the Texas Register , the Department of Assistive and Rehabilitative Services contemporaneously proposes the repeal of Chapter 109, Subchapter B, Division 7, Certified Court Interpreters, §§109.901, 109.903, 109.905, 109.907, 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.

Bill Wheeler, Chief Financial Officer, Department of Assistive and Rehabilitative Services, estimates that for each year of the first five years that the repeal and new 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 repeal and new rules will be in effect, the public benefit anticipated as a result of adopting the proposal 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 repeal and new rules as proposed. 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 proposal will not affect a local economy.

Subchapter A. SPECIALIZED TELECOMMUNICATIONS ASSISTANCE PROGRAM

1. DEFINITIONS

40 TAC §§109.1, 109.3, 109.5, 109.7

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

§109.1.Purpose.

§109.3.Statutory Authority.

§109.5.Definitions.

§109.7.Determination of Basic Equipment or Service.

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 April 30, 2007.

TRD-200701683

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

2. PROGRAM ELIGIBILITY

40 TAC §§109.31, 109.33, 109.35, 109.37, 109.39, 109.41, 109.43, 109.45

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

§109.31.Eligibility.

§109.33.Entities Authorized to Certify Disability.

§109.35.Vouchers.

§109.37.Determination of Voucher Value.

§109.39.Redeeming a Voucher.

§109.41.Vendor Listing.

§109.43.Client Confidentiality.

§109.45.Incomplete Applicant Files.

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

Filed with the Office of the Secretary of State on April 30, 2007.

TRD-200701684

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Chapter 109. OFFICE FOR DEAF AND HARD OF HEARING SERVICES

Subchapter A. GENERAL RULES

40 TAC §109.101, §109.103

The new sections 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.

§109.101.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise: DHHS or Office--Office for Deaf and Hard of Hearing Services, Division for Rehabilitation Services, Department of Assistive and Rehabilitative Services.

§109.103.Specialized License Plate Program.

In accordance with Human Resources Code §81.021, funds collected from the sale of specialized license plates under Transportation Code §504.619 and appropriated to DARS will be utilized for services provided under the office's direct services programs, training, and education for individuals who are deaf or hard of hearing.

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 April 30, 2007.

TRD-200701685

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Subchapter D. SPECIALIZED TELECOMMUNICATIONS ASSISTANCE PROGRAM

40 TAC §§109.401, 109.403, 109.405, 109.407, 109.409, 109.411, 109.413, 109.415, 109.417

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

§109.401.Purpose.

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

§109.403.Statutory Authority.

The program is created under authority of the Human Resources Code, Chapter 81 and Senate Bill 667, 75th Texas Legislature, 1997.

§109.405.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 DHHS uses to gather and document information about an individual applying for assistance under this program.

(2) Basic specialized telecommunications equipment--A device or devices that work together as one device, determined to be necessary and essential to facilitate basic access to the telephone system by a person with a disability.

(3) Basic specialized telecommunications service--A service or services that work together as one service, 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 basic specialized telecommunications equipment that is an option under this program and able to meet the same need.

(4) Financial Independence--When one or more otherwise eligible individuals reside in the same household but are not dependent upon one another for financial support.

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

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

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

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

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

(10) Voucher--A document of record which is issued to eligible applicants with the program and which can be exchanged with a vendor for equipment listed on the face of the voucher and which guarantees payment of up to but not exceeding the amount specified for the listed equipment or services.

§109.407.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 equipment or service must be for the purpose of telephone access;

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

(3) The service must be less expensive than the basic specialized telecommunications equipment 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 DHHS.

(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.

§109.409.Eligibility.

To be eligible for assistance from this program an individual must:

(1) be a resident of Texas;

(2) be a person with a disability that interferes with the person's ability to access the telephone network;

(3) be in a situation where no other individual in the household with the same type of disability needing the same type of equipment has received a voucher for equipment unless individuals in the household are financially independent of each other;

(4) not have received a voucher for any specialized telecommunications equipment or services before the 5th anniversary of the date the individual exchanged the previously issued voucher under this program, unless before that date, the individual develops a need for a different type of telecommunications equipment or service under this program because the individual's disability status changes; and

(5) be able to benefit from the specialized telecommunications equipment or service provided by the voucher.

§109.411.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. The following can serve as certifiers:

(1) licensed hearing aid specialist;

(2) licensed audiologist;

(3) licensed physician;

(4) DARS rehabilitation counselor, or DHHS approved state or federal employee, or DHHS approved state or federal contractor;

(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) STAP specialist as named in a DHHS STAP Outreach and Training contract, or DHHS-approved Resource Specialist; or

(11) licensed social worker.

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

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

(2) having personally met with and assessed the applicant's disability to determine that the applicant is eligible, in accordance with the program eligibility criteria;

(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 for access to the telephone network system from the specialized telecommunications equipment or services requested on the application.

§109.413.Vouchers.

(a) Eligible applicants will be issued an individually numbered voucher with a specified dollar value to be used towards the purchase of the specialized telecommunications equipment or service that must be listed on the voucher.

(b) Vouchers are non-transferable and have no cash value.

§109.415.Determination of Voucher Value.

(a) This program provides financial assistance to eligible persons with a disability to enable the persons to purchase a basic specialized telecommunications equipment or service which will provide telephone network access. The value of each voucher is based on the cost of the basic equipment or service necessary to enable the applicant to access the telephone network. The value of the voucher will be determined by DHHS.

(b) Voucher values will be reviewed at least annually.

§109.417.Consumer Confidentiality.

Consumer confidentiality provisions applicable to the program are contained in Chapter 101, Subchapter A, §101.119 of this title (relating to Confidentiality of Consumer Information in the Specialized Telecommunications Assistance Program).

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

Filed with the Office of the Secretary of State on April 30, 2007.

TRD-200701686

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Chapter 109. DEAF AND HARD OF HEARING SERVICES

The Texas Health and Human Services Commission proposes amendments to the rules of the Department of Assistive and Rehabilitative Services in Title 40, Part 2, Chapter 109, concerning Deaf and Hard of Hearing Services. This proposal repeals Subchapter B, Division 7, Certified Court Interpreters, §§109.901, 109.903, 109.905, 109.907, 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. A new Subchapter C, Certified Court Interpreters, §§109.301, 109.303, 109.305, 109.311, 109.313, 109.315, 109.321, 109.323, 109.325, 109.327, 109.329, 109.331, 109.333, 109.335, 109.337, 109.339, 109.341, 109.351, 109.353, 109.361, 109.363, 109.365, 109.367, 109.371, and 109.373, replaces the repealed sections.

The repeal and new rules are being proposed to conform the rules concerning certified court interpreters to current provisions of the Human Resources Code, Chapter 81, as amended through the 78th Legislative Session and as currently implemented following consolidation of the former Texas Commission for the Deaf and Hard of Hearing into the Department of Assistive and Rehabilitative Services; to provide updated information necessary for persons seeking to obtain and persons holding certification as court interpreters; and to remove details of program administration that do not affect applicants for and holders of court interpreter certification. In addition, as Government Code §57.027(a) provides that a person commits an offense if the person violates a rule adopted under Government Code Chapter 57, Subchapter B, the replacement rules clearly identify which of the rules are adopted under Government Code Chapter 57, Subchapter B and subject to §57.027(a). Finally, the replacement rules establish a new requirement that an individual may not interpret a court proceeding or deposition unless properly qualified as court interpreter for that particular case, by presenting to the judge presiding, or to the court reporter at a deposition, proper evidence of court interpreter certification by either the Department or by the Registry of Interpreters for the Deaf. This new requirement is identified in the replacement rules as being adopted under Government Code Chapter 57, Subchapter B.

Elsewhere in this issue of the Texas Register , Department of Assistive and Rehabilitative Services contemporaneously proposes changing the title of Chapter 109 from "Deaf and Hard of Hearing Services" to "Office for Deaf and Hard of Hearing Services."

Mr. Wheeler also estimates that for each year of the first five years the repeal and new rules will be in effect, the public benefit anticipated as a result of adopting the proposed repeal and new rules 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 proposal. 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 proposal will not affect a local economy.

Subchapter B. BOARD FOR EVALUATION OF INTERPRETERS AND INTERPRETER CERTIFICATION

7. CERTIFIED COURT INTERPRETERS

40 TAC §§109.901, 109.903, 109.905, 109.907, 109.909, 109.911, 109.913, 109.915, 109.917, 109.919, 109.921, 109.923, 109.925, 109.927, 109.929, 109.931

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

§109.901.Scope.

§109.903.Grandfathering of Current Court Interpreters.

§109.905.List of CART Providers.

§109.907.Court Certification Equivalency.

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

§109.911.Licensing Requirements--Examinations.

§109.913.Training and Qualifications to Take Examination.

§109.915.Approval of Courses of Instruction and Mentors.

§109.917.Licensing Requirements; Renewal.

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

§109.921.Fees for Court Interpreters.

§109.923.Sanctions--Administrative Sanctions/Penalties.

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

§109.927.Disciplinary Actions.

§109.929.Disciplinary Guidelines.

§109.931.Continuing Education for Court Interpreters.

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 April 30, 2007.

TRD-200701687

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Chapter 109. OFFICE FOR DEAF AND HARD OF HEARING SERVICES

Subchapter C. CERTIFIED COURT INTERPRETERS

40 TAC §§109.301, 109.303, 109.305, 109.311, 109.313, 109.315, 109.321, 109.323, 109.325, 109.327, 109.329, 109.331, 109.333, 109.335, 109.337, 109.339, 109.341, 109.351, 109.353, 109.361, 109.363, 109.365, 109.367, 109.371, 109.373

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

§109.301.Definitions.

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

(1) Certified court interpreter--Means an individual who is a qualified interpreter as defined in Article 38.31, Code of Criminal Procedure, or §21.003, Civil Practice and Remedies Code, or certified under Subchapter B of this chapter by the Department of Assistive and Rehabilitative Services to interpret court proceedings for a hearing-impaired individual.

(2) Department--The Department of Assistive and Rehabilitative Services (DARS).

(3) Commissioner--Means the commissioner of the Department of Assistive and Rehabilitative Services.

(4) Director--Means the Director of the Office for Deaf and Hard of Hearing Services.

(5) Hearing-impaired individual--An individual who has a hearing impairment, regardless of whether the individual also has a speech impairment that inhibits the individual's comprehension of proceedings or communication with others.

(6) Office--The Office for Deaf and Hard of Hearing Services, Division for Rehabilitation Services.

(7) Communication access realtime translation services--Is the instant translation of the spoken word into English text using a stenotype machine, notebook computer and realtime software, with the text appearing on a monitor or other display.

(8) Court proceeding--Includes an arraignment, deposition, mediation, court-ordered arbitration, or other form of alternative dispute resolution.

§109.303.Requirements for Interpreting Court Proceedings in Courts of the State of Texas.

(a) The provisions of this subchapter apply to all proceedings of Texas courts, including county, municipal, and justice courts. They do not apply to federal court proceedings.

(b) A person interpreting court proceedings in Texas courts must hold a current legal certificate issued by the Registry of Interpreters for the Deaf or a current court interpreter certificate issued by the Board for Evaluation of Interpreters of the Department of Assistive and Rehabilitative Services.

(d) Authority: Government Code, §§57.026, 57.027(a), 57.027(b).

§109.305.Responsibilities of Certified Court Interpreters.

(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. Complaints about the services provided by this person may be presented to the Office at P.O. Box 12904, Austin, Texas 78711." The notification shall also be included on all contracts and invoices for court interpreter services.

(b) In addition to the presentation of an individual's court interpreter certification card, which is required for qualification as a court interpreter for a particular case under §109.323 of this title (relating to Qualifications of Certified Court Interpreters), certified court interpreters 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, in writing, within thirty (30) days of any change in the certified court interpreter's name, address, or telephone number.

(d) Failure by certified court interpreters to satisfactorily fulfill these responsibilities may be grounds for administrative sanctions by the Department under Government Code §57.022(b)(8).

(e) Authority: Government Code, §§57.021(a), 57.022(b)(8), 57.027(b).

§109.311.Obtaining Documents and Information from the Office.

(a) Documents and other information concerning court interpreter certification that are identified as being available from the Office, may be obtained from the Department of Assistive and Rehabilitative Services, Office for Deaf and Hard of Hearing Services, 4900 North Lamar Blvd., Austin, Texas 78751-2399, or by calling the DARS Inquiries Unit, toll-free, 1-800-628-5115.

(b) Authority: Human Resources Code, §81.006(b)(3).

§109.313.Lists of Qualified Court Interpreters and Providers of Communication Access Realtime Translation Services.

(a) The department maintains lists of certified court interpreters and other persons the department has determined are qualified to act as court interpreters, and of persons identified by the Texas Court Reporters Association as being certified and qualified to provide communication access realtime translation services for a hearing-impaired individual in a court proceeding. Copies of these lists will be provided by the Office upon request.

(b) The lists of certified court interpreters and other persons the department has determined are qualified to act as court interpreters are sent by the Office to each state court.

§109.315.Gifts, Grants, or Donations.

(a) The department may accept gifts, grants, or donations from private individuals, foundations, or other entities to assist in administering the court interpreter certification program. Contact the Director, Office for Deaf and Hard of Hearing Services, Department of Assistive and Rehabilitative Services, 4900 N. Lamar Blvd., Austin, Texas 78751, (512) 407-3250 (V) or (512) 407-3251 (TTY).

(b) Authority: Government Code, §57.021(e).

§109.321.Certification.

(a) The department will certify an applicant who passes the appropriate examination prescribed by the department and who possesses the other qualifications required by the rules in this subchapter.

(b) Authority: Government Code, §57.022(a).

§109.323.Qualifications of Certified Court Interpreters.

(a) In each civil case, deposition, or criminal action in Texas courts for which an individual will interpret testimony, the individual must be qualified as court interpreter for that particular case before commencing to interpret testimony.

(b) An individual shall not interpret a court proceeding or deposition unless properly qualified under this subsection as court interpreter for that particular case. In order to be qualified as court interpreter for a particular case, the individual must present to the judge presiding, or to the court reporter at a deposition, either:

(1) a current card issued by the Department of Assistive and Rehabilitative Services, Division for Rehabilitation Services, Board for Evaluation of Interpreters, stating that the individual is certified as a court interpreter; or

(2) a current membership card issued in the name of the individual by the Registry of Interpreters for the Deaf, Inc., 333 Commerce Street, Alexandria, VA 22314, carrying the designations "Certified" and "SC:L."

(c) An applicant to become a court interpreter must hold at least one BEI certification at Level III, IV, V, IIIi, IVi, Vi, Advanced, Master or Oral: Comprehensive, or certification through RID as a CSC, CI/CT, RSC, CDI, or MCSC, or NIC Advanced or Master, and pass an examination on legal and court procedure skills and knowledge.

(d) Training and Qualifications to Take Examination.

(1) Prior to taking the court interpreter examination, an applicant must provide to the Office proof that the applicant has completed instruction in court interpretation in one of the following methods:

(A) Completion of approved courses of instruction in courtroom interpretation knowledge and skills with not less than 120 hours of classroom instruction;

(B) 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

(2) The current list of approved courses of instruction in courtroom interpretation skills and training programs for interpreters applying for Court Interpreter Certification or certified court interpreters needing continuing education unit credits may be obtained from the Department of Assistive and Rehabilitative Services, Office for Deaf and Hard of Hearing Services, 4900 North Lamar Blvd., Austin, Texas 78751-2399, or by calling the DARS Inquiries Unit, toll-free, 1-800-628-5115.

(e) Authority: Government Code, §§57.022(b)(1), 57.027(a), 57.027(b).

§109.325.Training Programs for Certified Court Interpreters Managed by the Department or by Public or Private Educational Institutions.

(a) Approval of Courses of Instruction and Mentors.

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

(2) The Office will review the proposed course outline and materials and make a determination on whether it should be approved.

(3) Instructors must hold either Court Interpreter Certification issued by the department or be a licensed attorney or paralegal, or be otherwise found to be qualified as an instructor by the Office.

(4) A person intending to be a mentor shall apply to the Office on a form to be provided by the Office.

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

(A) Meet the requirements for and hold Court Interpreter Certification issued by the department or RID SC:L for a period of not less than one year;

(B) Pass an examination on legal and court procedure skills; and

(6) Mentors shall conform to a course of training prescribed by the Office.

(b) The department may contract with public or private educational institutions, and other entities, to administer training programs. In accordance with Government Code, §57.021(b), the department will suspend training offered by an institution if the training fails to meet the requirements established by the department.

§109.327.Administration of Examinations.

(a) General.

(1) In accordance with Government Code, §57.023, the department will prepare examinations under this subchapter that test an applicant's knowledge, skill, and efficiency in the field in which the applicant seeks certification.

(2) A person who fails an examination may apply for reexamination at the next examination scheduled after the date the person failed the original examination.

(3) Examinations will be offered in the state at least twice a year at times and places designated by the department. The current schedule of times and places for examinations may be obtained from the Office.

(b) Examination on legal and court procedure skills and knowledge.

(1) A passing grade on the examination is 80 percent.

(2) The examinations will be administered to applicants with content and format determined by the Office.

(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.

(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 or an immediate family member whom the person is required to attend; or

(B) Documented evidence that the applicant was unable to attend the examination due to reasons beyond his or her 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.

§109.329.Form for Certificates.

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

(b) Authority: Government Code, §§57.022(b)(4), 57.027(a), 57.027(b).

§109.331.Procedures for Renewal of a Certificate.

(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) Nonreceipt of a certification renewal notice from the Office 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 when the person with the expired certification meets the conditions of a certification renewal, as outlined in this section, and pays required fees, including the renewal fee and the late renewal fee.

(e) Authority: Government Code, §§57.022(b)(4), 57.027(a), 57.027(b).

§109.333.Fees for Training, Examinations, Initial Certification, and Certification Renewal.

(a) The Office has established fees to charge interpreters for training, examinations, initial certification, and certification renewal to defray the cost of conducting these activities. The current schedule of charges is published on the website of the Office, http://www.dars.state.tx.us/dhhs/index.shtml, and is available in hard copy from the Office. All fees are nonrefundable.

(b) Authority: Government Code, §§57.022(b)(5), 57.027(a), 57.027(b).

§109.335.Continuing Education Programs Required for Court Interpreter Initial Certification or Certification Renewal.

(a) The Office recognizes, prepares, and/or administers continuing education programs for certified interpreters. A certified interpreter must participate in the programs to the extent required by the Office to keep the person's certificate. Current requirements for continuing education, and announcements of current training opportunities, may be obtained from the Office.

(b) Authority: Government Code, §§57.022(b)(6), 57.027(a), 57.027(b).

§109.337.Instructions for the Compensation of a Certified Court Interpreter and Designation of the Party or Entity Responsible for Payment of Compensation.

(a) In accordance with Civil Practice and Remedies Code, §21.006 and HB 2292, 78th Legislature (RS), §1.21, the court interpreter in civil cases and depositions shall be paid a reasonable fee determined by the court after considering the recommended fees of the Department of Assistive and Rehabilitative Services. If the interpreter is required to travel, the interpreter's actual expenses of travel, lodging, and meals relating to the case shall be paid at the same rate provided for state employees. The interpreter's fee and expenses shall be paid from the general fund of the county in which the case was brought.

(b) In accordance with Code of Criminal Procedure, Article 38.31(f), and HB 2292, 78th Legislature (RS), §1.21, interpreters appointed in criminal actions, to include arraignments, hearings, examining trials, and trials, are entitled to a reasonable fee determined by the court after considering the recommendations of the Department of Assistive and Rehabilitative Services. When travel of the interpreter is involved, all the actual expenses of travel, lodging, and meals incurred by the interpreter pertaining to the case he or she is appointed to serve shall be paid at the same rate applicable to state employees.

(c) Under the authority of the Texas Code of Criminal Procedure Art. 38.31(f), Texas Government Code, §57.022(b)(7), and the Civil Practice and Remedies Code, §21.006, the Office establishes recommended 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.

(d) These fees may be reviewed and/or revised as deemed necessary by the Office. The schedule of fees and any changes will be posted on the Office website and are available upon request.

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

(f) 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.

(g) Authority: Government Code, §§57.022(b)(7), 57.027(a), 57.027(b).

§109.339.Administrative Sanctions Enforceable by the Department.

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

(b) Authority: Government Code, §57.022(b)(8), §57.027(b).

§109.341.Code of Professional Conduct.

(a) The CODE OF ETHICS AND PROFESSIONAL RESPONSIBILITY OF CERTIFIED COURT INTERPRETERS of the Division for Rehabilitation Services, Office for Deaf and Hard of Hearing Services, shall govern the professional conduct of court interpreters certified under this subchapter. Willful violation of the CODE OF ETHICS AND PROFESSIONAL RESPONSIBILITY OF CERTIFIED COURT INTERPRETERS is grounds for suspension or revocation of certification under §109.243(a) and §109.351 of this title (relating to Grounds for Denying, Suspending, or Revoking an Interpreter's Certificate and Denial, Suspension, or Revocation of Certificate). Copies of the CODE OF ETHICS AND PROFESSIONAL RESPONSIBILITY OF CERTIFIED COURT INTERPRETERS may be obtained from the Office.

(b) Authority: Human Resources Code, §81.006(b)(3), §81.007(h).

§109.351.Denial, Suspension, or Revocation of Certificate.

(a) The grounds for denying, suspending, or revoking a court interpreter's certificate are the same grounds as for denying, suspending, or revoking an interpreter's certificate pursuant to the Board for Evaluation of Interpreters of the Department of Assistive and Rehabilitative Services procedures set forth in §109.243 of this title (relating to Grounds for Denying, Suspending, or Revoking an Interpreter's Certificate).

(b) The department may revoke or suspend certification under this subchapter only after a hearing. The department may reissue a certificate to a person whose certificate has been revoked if the person applies in writing to the department and shows good cause to justify reissuance of the certificate. Copies of procedures for hearings to revoke and suspend certificates, and for submitting applications for reissuance after revocation of a certificate, may be obtained from the Office.

§109.353.Disciplinary Actions.

(a) The Office shall take disciplinary action against a certificate holder who is found to be in violation of a law or rule of the Office. 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 will take the form of an Office 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 rules governing certified court interpreters until the certification is revoked by the Office or becomes nonrenewable under the law.

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

(1) The Office 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 court interpreter.

(2) The Office 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.

(e) Authority: Government Code, §57.022(b)(8).

§109.361.Prohibited Acts.

(a) A person may not interpret for a hearing-impaired individual at a court proceeding or advertise or represent that the person is a certified court interpreter unless the person holds a current legal certificate issued by the Registry of Interpreters for the Deaf or a current court interpreter certificate issued by the Board for Evaluation of Interpreters of the Department of Assistive and Rehabilitative Services.

(b) Violation of the prohibition in this section is a Class A misdemeanor offense under Government Code, §57.027(a), and may, in addition subject the violator to an administrative penalty assessed by the department under Government Code, §57.027(b) and §109.339 of this title (relating to Administrative Sanctions Enforceable by the Department).

§109.363.Enforcement.

(a) The commissioner shall investigate allegations of violations, and shall enforce this subchapter. Allegations concerning violations of this subchapter should be forwarded, in writing, to Director, Office for Deaf and Hard of Hearing Services, 4900 North Lamar Blvd., Austin, Texas 78751.

(b) Authority: Government Code, §57.024.

§109.365.Criminal Offense.

(a) Government Code, §57.027(a) provides that a person commits an offense if the person violates Government Code Chapter 57, Subchapter B, pertaining to court interpreters for hearing impaired individuals, or a rule adopted under the subchapter. An offense under Government Code, §57.027(a) is a Class A misdemeanor.

(b) Sections 109.303, 109.323, 109.325, 109.327, 109.329, 109.331, 109.333, 109.335, 109.337 and 109.361 of this subchapter (relating to Certified Court Interpreters) are adopted under the provision of law described in subsection (a) of this section, and violations are subject to criminal penalties. In addition, violations of the provisions of §109.303 and §109.361 of this subchapter would constitute direct violations of Government Code, §57.026, and would also be subject to criminal penalties under Government Code, §57.027(a).

§109.367.Actions Against Persons Not Certified as Court Interpreters.

(a) The Office shall investigate complaints and take action against a person alleged to perform court interpretation without certification or authorization as provided by this subchapter. The following investigative process and resulting action listed in paragraphs (1) - (3) of this subsection will be followed by the Office 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 staff to determine if a violation of law has occurred. The Office'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 have been violated. If the initial evidence is sufficiently strong, the Director may offer the respondent a consent order that, if accepted, will be presented to the Office for acceptance or rejection. The consent order shall include an administrative penalty not inconsistent with §109.339 of this title (relating to Administrative Sanctions Enforceable by the Department) 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 §109.353 of this title (relating to Disciplinary Actions).

(D) Any Office 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 rules.

(b) Authority: Government Code, §57.022(b)(8).

§109.371.Court Interpreter Qualifications in Civil Cases or Depositions Pursuant to Civil Practice and Remedies Code.

(a) A court interpreter in a civil case or deposition in Texas courts must hold a current legal certificate issued by the Registry of Interpreters for the Deaf or a current court interpreter certificate issued by the Board for Evaluation of Interpreters of the Department of Assistive and Rehabilitative Services.

(b) Source: Civil Practice and Remedies Code, §21.003.

§109.373.Court Interpreter Qualifications in Criminal Actions Pursuant to Code of Criminal Procedure.

(a) A qualified interpreter in criminal actions in Texas courts, to include arraignments, hearings, examining trials, and trials, for a person who has a hearing impairment that inhibits the person's comprehension of the proceedings or communication with others, must hold a current legal certificate issued by the Registry of Interpreters for the Deaf or a current court interpreter certificate issued by the Board for Evaluation of Interpreters of the Department of Assistive or Rehabilitative Services.

(b) Source: Code of Criminal Procedure, Art. 38.31(g).

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 April 30, 2007.

TRD-200701688

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: June 10, 2007

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

Part 19. DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES

Chapter 700. CHILD PROTECTIVE SERVICES

Subchapter C. ELIGIBILITY FOR CHILD PROTECTIVE SERVICES

The Health and Human Services Commission proposes, on behalf of the Department of Family and Protective Services (DFPS), amendments to §§700.308 - 700.311, 700.314 - 700.321, 700.323 - 700.325, 700.327 - 700.333, and 700.345; the repeal of §700.322 and §700.334; and new §700.346, concerning Subchapter C, Eligibility for Child Protective Services, in its Child Protective Services chapter. The purpose of the amendments, repeals and new section is to: (1) allow youth who have aged-out of foster care to return to a DFPS-paid foster care placement to complete their educational goals; (2) ensure that the rules for foster care assistance are consistent with applicable legal requirements, including provisions of the state plan for Medical Assistance and the Texas Family Code; and (3) update the agency name and make minor editorial changes.

Section 700.316 is revised to allow youth who have aged-out of foster care to return to a DFPS-paid foster care placement to complete their educational goals. The return to care category is added as a population that is eligible for foster care assistance; the eligibility requirements for return to care are clarified; and the type of foster care assistance for return to care is listed. The revisions also make the terminology consistent with other provisions of Subchapter C, Eligibility for Child Protective Services; clarify the general eligibility for IV-E or state-paid foster care assistance; and consolidate various provisions related to Medical Assistance Only (MAO). Section 700.322 and §700.334 are deleted and relevant information is incorporated into §700.316.

Section 700.320 is revised to clarify that eligibility in medical facility placement is limited to MAO, update the agency name, make the terminology consistent with the rest of Subchapter C, and clarify the type of proceedings referenced by this rule.

Section 700.333 is revised to make the references to MAO uniform.

New §700.346 lists the criteria that a youth must meet to return to a foster care setting.

The following sections are revised to update the agency name, delete unnecessary language and obsolete provisions, update terminology, and make other minor clarifications: §§700.308 - 700.311, 700.314, 700.315, 700.317 - 700.319, 700.321, 700.323 - 700.325, 700.327 - 700.332, and 700.345.

Cindy Brown, Chief Financial Officer of DFPS, has determined that for the first five-year period the proposed sections will be in effect there will be fiscal implications for state government as a result of enforcing or administering the sections. The change to allow youth who have aged-out of foster care to return to a paid foster care placement in order to complete their educational goals, will result in an increased number of youth in a paid foster care setting each year. It is anticipated that the increased number of youth in a paid foster care setting will be 40 in fiscal year 2008; 80 in fiscal year 2009; 160 in fiscal year 2010; 170 in fiscal year 2011; and 180 in fiscal year 2012. The effect on state government for the first five-year period that the changes will be in effect is estimated to cost $634,689 for fiscal year 2008; $1,539,863 for fiscal year 2009; $2,993,759 for fiscal year 2010; $3,999,594 for fiscal year 2011; and $4,271,374 for fiscal year 2012. The increased workload resulting from this change to the rules will be absorbed by existing staff. There will be no fiscal implications for local government.

Ms. Brown also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be that youth who have aged out of foster care will be able to return to an environment where they can obtain self-sufficiency through furthering their education. It will also decrease truancy, dropout rates, and associated risk behaviors. There will be no effect on large, small, or micro-businesses because the proposed changes do not impose new requirements on any business and do not require the purchase of any new equipment or any increased staff time in order to comply. There is no anticipated economic cost to persons who are required to comply with the proposed sections.

Questions about the content of the proposal may be directed to Larry Burgess at (512) 438-5320 or Candice Holmes at 438-2350 in DFPS's Child Protective Services Division. Electronic comments may be submitted to Marianne.Mcdonald@dfps.state.tx.us. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-363, Department of Family and Protective Services E-611, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register .

HHSC has determined that the proposed amendments, new section, and repeals do not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, do not constitute a taking under §2007.043, Government Code.

40 TAC §§700.308 - 700.311, 700.314 - 700.321, 700.323 - 700.325, 700.327 - 700.333, 700.345, 700.346

The amendments and new section are proposed under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services; and HRC §40.021, which provides that the Family and Protective Services Council shall study and make recommendations to the Executive Commissioner and the Commissioner regarding rules governing the delivery of services to persons who are served or regulated by the department.

The amendments and new section implement the Texas Family Code, §264.101 and §264.121.

§700.308.Right to [ To ] Refuse Services and Consequences of Refusal.

(a) A parent's absence or refusal to accept services offered by the Texas Department of Family and Protective [ ~~and Regulatory~~ ] Services (DFPS) [ ~~(PRS)~~ ] does not change DFPS's [ ~~PRS'~~ ] legal responsibility to protect children. Parents must not be coerced or defrauded into accepting services but must be notified of the steps DFPS [ ~~PRS~~ ] may take to protect the children if the parents refuse services.

(b) Parents have the right to refuse services offered by DFPS [ ~~PRS~~ ] unless a court has ordered the services.

(c) If parents refuse to allow DFPS [ ~~PRS~~ ] to investigate, DFPS [ ~~PRS~~ ] may request the county or district attorney to petition the court for an order that requires the parents to allow the investigation. If the allegation of abuse or neglect or other information available to DFPS [ ~~PRS~~ ] indicates immediate danger to the child, DFPS [ ~~PRS~~ ] may also seek a court order to remove the child from the home.

§700.309.Administrative Reviews of Client Complaints.

Child protective services clients have the right to an administrative review of any complaint about the Texas Department of Family and Protective [ ~~and Regulatory~~ ] Services' child protective services. When clients make a complaint, staff inform the clients that they may request an administrative review. An administrative review is conducted by staff at a higher level than the worker within a reasonable time after the client requests the review.

§700.310.Fair Hearings.

(a) Child protective services clients have the right to a fair hearing if services they request are denied, reduced, or terminated or if the Texas Department of Family and Protective [ ~~and Regulatory~~ ] Services (DFPS) [ ~~(PRS)~~ ] does not act on their request for services with reasonable promptness.

(b) When DFPS [ ~~PRS~~ ] staff informs a client that requested services have been denied, reduced, or terminated or will not be provided with reasonable promptness, staff must also inform the client:

(1) that the client may request a fair hearing to question DFPS [ ~~PRS~~ ] action;

(2) - (3) (No change.)

§700.311.Eligible Individuals.

(a) Children and their families are eligible for services to prevent abuse and neglect and to avoid having to remove children from their homes, services to remove children in danger of harm, and services to reunify families when both of the following two conditions are satisfied.

(1) (No change.)

(2) The case meets the criteria for providing services in at least one of the following sections and subchapters:

(A) (No change.)

(B) Subchapter G of this chapter (relating to [ ~~Family Preservation~~ ] Services for Families );

(b) (No change.)

§700.314.Authorization and Reauthorization of Services.

To receive purchased child protective services, a client must be authorized for the service by the Texas Department of Family and Protective [ ~~and Regulatory~~ ] Services.

§700.315.Foster Care Assistance [ ~~Maintenance Resources~~ ].

(a) There are three types of foster [ ~~Foster~~ ] care assistance provided to eligible children in the conservatorship of DFPS, or in DFPS care pursuant to §700.316(a)(1)(D) and (E) of this title (relating to General Eligibility Requirements for Foster Care Assistance): [ is financial and medical coverage provided by Title IV-E foster care, medical assistance only (MAO) foster care, or state-paid foster care. All other financial resources to which a child is entitled must be used before Title IV-E, MAO, or state-paid foster care is used to pay for the cost of a child's foster care. ]

(1) Title IV-E foster care assistance;

(2) State-paid foster care assistance; and

(3) Medical Assistance Only (MAO).

(b) The Title IV-E foster care assistance [ ~~is a~~ ] program provides foster care maintenance payments and Medicaid coverage to [ ~~for~~ ] children who meet the requirements contained in §700.316 of this title and §700.317 of this title (relating to Additional Eligibility Requirements for Title IV-E Foster Care Assistance [ ~~for the foster care assistance program funded by Title IV-E of the Social Security Act. Program benefits include Medicaid coverage and foster care payments~~ ].

(c) The state-paid foster care assistance program provides foster care maintenance payments and Medicaid coverage to children who meet the requirements contained in §700.316 of this title and §700.318 of this title (relating to Additional Eligibility Requirements for State-Paid Foster Care Assistance) but are not eligible for Title IV-E foster care assistance [ Medical Assistance Only (MAO) foster care provides Medicaid benefits to needy children who meet the financial requirements but are not otherwise eligible for Title IV-E or state-paid foster care. The care for these children is provided at no cost to the Texas Department of Protective and Regulatory Services ].

(d) MAO provides Medicaid benefits to children in DFPS's managing conservatorship who meet the requirements of §700.316(c) of this title but are not otherwise eligible for Title IV-E or state-paid foster care assistance [ State-paid foster care provides foster care maintenance payments and Medicaid coverage to children who meet the requirements contained in §700.316 and §700.318 of this title (relating to Eligibility Requirements for Title IV-E, MAO, and State-paid Foster Care Assistance and Additional Eligibility Requirements for State-paid Foster Care Assistance) ].

(e) All other financial resources to which a child is entitled must be used before any type of foster care assistance is used to pay for the cost of a child's foster care.

§700.316. General Eligibility Requirements for Foster Care [ ~~Title IV-E, MAO, and State-Paid Foster-Care~~ ] Assistance.

(a) The child or youth must meet all of the following criteria to be eligible for Title IV-E[ ~~, Medical Assistance Only (MAO),~~ ] or state-paid foster care assistance.

(1) Responsibility for placement and care. The Texas Department of Family and Protective Services (DFPS) must have the responsibility for the child's placement and care. This requirement is met if:

(A) - (B) (No change.)

(C) The child lives with his minor parent, and the minor parent is in DFPS's managing conservatorship. The child and the minor parent must reside together in the same foster family home or residential child-care operation; [ or ]

(D) The youth is in conservatorship immediately preceding his 18th birthday, and:

(i) (No change.)

(ii) lacks capacity and the Texas Department of Aging and Disability Services (DADS) has applied for and is granted guardianship ; or [ . ]

(E) The youth qualifies as a return to care youth under §700.346 of this title (relating to Return to Foster Care).

(2) Age, educational, and vocational requirements.

(A) The child must be less than 18 years old; [ or ]

(B) The youth qualifies as a return to care youth under §700.346 of this title; or

(C) [ ~~(B)~~ ] If a youth in foster care turns 18 years old, and is receiving foster care assistance, the youth's eligibility for foster care assistance ends on the last day of the month of his 18th birthday, unless one of the following conditions is satisfied:

(i) The youth is enrolled in and attending full time a high school or a program leading toward a high school diploma. In this case the youth's eligibility is extended until the end of the month the youth completes or withdraws from high school, or the end of the month in which the youth turns 22 years old, whichever comes first;

(ii) The youth has been accepted for admission to a college or vocational program that does not begin immediately. In this case the youth's eligibility is extended for a period not to exceed three and one-half months following the end of the month in which the youth graduates from high school or obtains a General Equivalence Diploma ("GED");

(iii) The youth is enrolled in and attending GED classes full time and is expected to complete the classes by his 19th birthday. In this case the youth's eligibility is extended until the end of the month the youth completes or withdraws from the classes, or the end of the month in which the youth turns 19 years old, whichever comes first;

(iv) The youth is enrolled in and attending full time a vocational or technical training program and is expected to complete the program before his 21st birthday. In this case the youth's eligibility is extended until the end of the month the youth completes or withdraws from the program, or the end of the month in which the youth turns 21 years old, whichever comes first; or

(v) The youth receives a GED, enrolls in a vocational or technical training program before his 18th birthday, and is expected to complete the program before or during the month of his 19th birthday. In this case the youth's eligibility for Title IV-E foster care eligibility is extended until the end of the month in which he completes or withdraws from the program, or the end of the month in which the youth turns 19 years old, whichever comes first.

(3) - (7) (No change.)

(8) Additional Requirements. The child must meet the additional requirements for Title IV-E or state-paid foster care assistance described in §§700.317, 700.318, and 700.346 of this title (relating to Additional Eligibility Requirements for Title IV-E Foster Care Assistance, Additional Eligibility Requirements for State-Paid Foster Care Assistance, and Return to Foster Care), as applicable.

(b) The following conditions determine the type of foster care assistance for which a youth qualifies if remaining in foster care past age 18 years:

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

(3) If the youth is enrolled in and attending full time a vocational or technical training program and is not expected to complete the program by his 19th birthday, the youth's foster care may be extended as state-paid and may continue until the end of the month the youth completes or withdraws from the program, or the end of the month the youth turns 21 years old, whichever comes first; [ or ]

(4) If the youth is eligible for the return to care program as specified under §700.346(a)(2)(A)(iii) of this title, the foster care is state-paid at the Basic Service Level, or the facility's lowest contracted rate;

(5) If the youth is eligible for the return to care program as specified under §700.346(a)(2)(A)(i) and (ii) of this title, the foster care is state-paid at the appropriate service level; or

(6) [ ~~(4)~~ ] If the youth is eligible for the extension of foster care assistance as specified in subsection (a)(2)(C)(ii) [ ~~(a)(2)(B)(ii)~~ ] of this section, the extension of foster care is state-paid at the appropriate service level [ ~~Basic Service Level or the facility's lowest contracted rate~~ ].

(1) DFPS must have responsibility for the child's placement and care, as defined in subsection (a)(1) of this section. The child may be in a licensed or unlicensed placement, as long as he or she remains in DFPS's managing conservatorship and is not receiving Medicaid through another program.

(2) The child must be under the age of 18 years.

§700.317.Additional Eligibility Requirements for Title IV-E Foster Care Assistance .

(a) Besides the general eligibility requirements specified in §700.316 of this title (relating to General Eligibility Requirements for [ ~~Title IV-E, MAO, and State-paid~~ ] Foster Care Assistance), a child must meet the following [ ~~additional~~ ] requirements to qualify for Title IV-E foster care assistance.

(1) Aid to Families with Dependent Children (AFDC)-related status. At least one of the following conditions must apply.

(A) - (B) (No change.)

(C) The child lives with his minor parent, and the minor parent is in the Texas Department of Family and Protective [ ~~and Regulatory~~ ] Services' (DFPS's) [ ~~(TDPRS's)~~ ] managing conservatorship. As long as the child continues to live with the minor parent, a separate court-ordered removal is not required for the child to qualify for Title IV-E foster care assistance.

(D) (No change.)

(2) (No change.)

(3) Relationship and domicile. During the month in which court proceedings were initiated, or at some time during the six preceding months, the child must have lived with a relative who qualifies as a "specified relative" under 45 Code of Federal Regulations (CFR) §233.90(c)(v) [ ~~§233.90(c)(v)(A)(1)-(6)~~ ].

(4) - (5) (No change.)

(b) For purposes of determining eligibility for foster care assistance, DFPS [ ~~TDPRS~~ ] considers court proceedings initiated when:

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

§700.318.Additional Eligibility Requirements for State-Paid Foster Care Assistance.

(a) Besides the general requirements for foster care eligibility, a child must meet the following criteria to be eligible for state-paid foster care assistance :

(1) the child must not be eligible for Title IV-E foster care assistance ;

~~[(2) the child must be placed in foster care after August 31, 1979;]~~

[(3) for children placed in foster care after August 31, 1979, and before June 16, 1981, a petition for termination of parental rights of one or both parents under the Texas Family Code, §161.001, must have been filed;]

(2) [ ~~(4)~~ ] the court order naming the Texas Department of Family and Protective [ ~~and Regulatory~~ ] Services (DFPS) [ ~~(TDPRS)~~ ] as the child's managing conservator must be issued under an article other than §161.001(1)(J)(i) and (ii) of the Texas Family Code ; and [ . ]

(3) the [ ~~The~~ ] suit, resulting in DFPS [ ~~TDPRS~~ ] being named the managing conservator, must have been initiated on DFPS's [ ~~TDPRS's~~ ] behalf.

(b) (No change.)

§700.319.Effective Date of Eligibility.

A child is eligible for foster care assistance [ ~~aid to families with dependent children, medical assistance only, or state-paid foster care~~ ] on the earliest date that all applicable eligibility requirements are met.

§700.320.Eligibility in Medical Facilities before Placement.

(a) A child in a medical facility is eligible for [ ~~aid to families with dependent children (AFDC),~~ ] medical assistance only (MAO)[ ~~, or state-paid foster care assistance~~ ] if:

(1) the child meets the general eligibility requirements specified in §700.316(c) [ ~~§700.316~~ ] of this title (relating to General Eligibility Requirements for [ ~~AFDC, MAO, and State-paid~~ ] Foster Care Assistance); and

[ ~~(2)~~ ~~both of the following conditions apply:~~ ]

~~[(A) The Texas Department of Protective and Regulatory Services (PRS) is responsible for the child's care and placement;]~~

(2) [ ~~(B)~~ ] DFPS [ ~~PRS~~ ] plans to place the child in a foster care facility as soon as the child leaves the medical facility. DFPS [ ~~PRS~~ ] must proceed with the planned placement unless the child dies in the medical facility or there is a change in the court order or some other event occurs that clearly precludes making the placement.

(b) If removal [ ~~court~~ ] proceedings are initiated during the month of the child's admission to the medical facility, the child's eligibility for foster care assistance commences on the date of admission. If removal [ ~~court~~ ] proceedings are not initiated until the following month, the child's eligibility commences on the first day of the month in which the proceedings are initiated.

§700.321.AFDC Domicile for Children Relinquished at Birth and Children Born to Incarcerated Mothers.

The Aid to Families with Dependent Children [ ~~Aid to families with dependent children~~ ] domicile requirement is met at the time of birth if the mother relinquishes her rights to the child or if the mother is incarcerated. Eligibility is effective the date of birth if all other eligibility requirements are met and court proceedings are initiated during the month of birth.

§700.323.Continuation of Foster Care Payments During Absences from Care.

(a) Under certain circumstances, the Texas Department of Family and Protective [ ~~and Regulatory~~ ] Services (DFPS) [ ~~(TDPRS)~~ ] will continue to make foster care payments to a provider on behalf of a child who is no longer in that provider's care, in order to reserve space for the child's anticipated return to that provider at a date in the near future. The maximum duration of continued payments to the provider during a child's absence is subject to the limitations set forth in this section.

(b) Payments to a provider for foster care during a child's absence will only be made if each of the following conditions are met:

(1) DFPS [ ~~TDPRS~~ ] plans to return the child to the provider at the end of the absence;

(2) (No change.)

(3) DFPS [ ~~TDPRS~~ ] is not making foster care payments on behalf of this same child to any other provider during the child's absence.

(c) If a child is temporarily absent from an emergency shelter or other provider contracted to provide emergency care, DFPS [ ~~TDPRS~~ ] may continue to pay the provider for not more than five additional days during the child's absence.

(d) If a child's temporary absence from non-emergency foster care is authorized by DFPS [ ~~TDPRS~~ ], DFPS [ ~~TDPRS~~ ] may continue to pay the foster care provider for not more than 30 days during the child's absence, unless a greater period of payment is approved by the Child Protective Services (CPS) program administrator. DFPS [ ~~TDPRS~~ ] may pay for not more than 90 days of care during a child's authorized absence if the CPS program administrator approves. In unusual circumstances, payments may continue for an authorized absence of longer than 90 days with prior written approval by the CPS director. If a child's temporary absence from non-emergency care is not authorized by DFPS [ ~~TDPRS~~ ], DFPS [ ~~TDPRS~~ ] may pay for not more than 15 additional days of care during the child's unauthorized absence.

§700.324.Re-determination of Foster Care Eligibility.

The Texas Department of Family and Protective Services (DFPS) must re-determine a child's eligibility for [ ~~aid to families with dependent children (AFDC), medical assistance only (MAO), and state-paid~~ ] foster care assistance:

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

§700.325.Redetermination of Deprivation of Parental Support.

For Title IV-E [ ~~aid to families with dependent children~~ ] foster care assistance , the child must continue to be deprived of parental support. Deprivation of parental support is based on current circumstances in the home from which the child was removed. Children whose parental rights have been terminated are considered permanently deprived of parental support effective the date of termination.

§700.327.Eligibility for Four Months of Medicaid Coverage Following Denial of Title IV-E [ ~~AFDC~~ ] Foster Care Assistance .

A child in foster care is eligible for Medicaid benefits for four calendar months after the denial of Title IV-E [ ~~aid to families with dependent children (AFDC)~~ ] foster care assistance if the child:

(1) was denied IV-E [ ~~AFDC~~ ] foster care assistance because of the child's earned income; and

(2) (No change.)

§700.328.Foster Care Maintenance [ ~~Assistance~~ ] Payments.

(a) To receive foster care maintenance [ ~~assistance~~ ] payments, private child care facilities must be approved by the Texas Department of Family and Protective [ ~~and Regulatory~~ ] Services (DFPS) [ ~~(TDPRS)~~ ] for participation.

(b) DFPS's [ ~~TDPRS's~~ ] foster care rates will be determined by the service level that the child needs, subject to adjustments based on the extent to which other services provided by outside parties meet the child's needs or on other factors consistent with the child's needs. In the rate structure, rates are based on analysis of cost reports and other pertinent financial and statistical information including statistics published by the United States Department of Agriculture (USDA) on the expenditures on a child by families. DFPS's [ ~~TDPRS's~~ ] determination of a child's service level is based upon the child's characteristics, as described in DFPS's [ ~~TDPRS's~~ ] application form, and the descriptions of service levels.

(c) Foster care maintenance [ ~~assistance~~ ] payments are intended to cover the child's basic needs, not the needs of the provider, unless meeting provider needs is necessary for meeting the child's needs. The rates for foster care payments are approved by the Health and Human Services Commission in accordance with 1 TAC §355.7103 (relating to Rate-Setting Methodology for 24-Hour Residential Child-Care Reimbursements) [ reviewed by the Texas Board of Protective and Regulatory Services annually in an open meeting, after considering pertinent financial and statistical information, TDPRS rate recommendations, other staff recommendations, the cost-finding methodology, public testimony, agency service demands, and the availability of appropriated revenue. Costs included in the rates are specified in §§700.1801-700.1806 of this title (relating to Cost Reporting, Cost-finding Analysis, Definition of Allowable and Unallowable Costs, Allowable Costs, Unallowable Costs, and Cost Not Included in Recommended Payment Rates) ].

(d) To participate in DFPS's [ ~~TDPRS's~~ ] foster care assistance program, all DFPS [ ~~TDPRS~~ ] and non-DFPS [ ~~non-TDPRS~~ ] families and private, nonprofit and for-profit facilities, group homes, and child-placing agencies must complete a contract or agreement with DFPS [ ~~TDPRS~~ ]. The contract or agreement must be signed by the foster care provider and DFPS [ ~~TDPRS~~ ] and will be in effect for a designated period stated in writing in the contract or agreement. At the expiration of this period, the contract will continue according to its then-current terms until either party terminates the contract, or until DFPS [ ~~TDPRS~~ ] notifies the provider of a change, at which point, the contract ends, and a new contract begins if the provider agrees to the new terms. This agreement will be expressed in writing.

(e) Upon DFPS's [ ~~TDPRS's~~ ] request, these families, facilities, group homes, and child-placing agencies must accept a DFPS [ ~~TDPRS~~ ] application form as complete and sufficient application for a child's placement. Facilities, group homes, and child-placing agencies that receive payment from DFPS [ ~~TDPRS~~ ] either directly or indirectly must submit a completed cost report. These cost reports are used to set foster care rates for all service levels and emergency shelters. Reimbursement for a facility, group home, or child-placing agency serving all service levels is contingent on the completion and submittal of the cost report to DFPS [ ~~TDPRS~~ ]. Failure to complete and submit a cost report is grounds for placing a hold on payments to providers or for terminating the contract or agreement.

(f) DFPS [ ~~TDPRS~~ ] may exempt a family, facility, group home, or child-placing agency from the cost report requirement if extenuating circumstances make it impossible for the facility, group home, or child placing agency to comply. A letter stating the reason(s) for requesting an exemption from completing the cost report must be submitted in writing to DFPS [ ~~TDPRS~~ ]. DFPS [ ~~TDPRS~~ ] will, in its sole discretion, make a determination about whether to grant the exemption.

§700.329.Effective Dates of Foster Care Maintenance [ ~~Assistance~~ ] Payments.

(a) The effective date for beginning foster care maintenance payments is the date the child meets all eligibility requirements for foster care assistance.

(b) (No change.)

(c) The Texas Department of Family and Protective [ ~~and Regulatory~~ ] Services does not pay two different facilities for foster care assistance for the same child on the same date.

§700.330.Billing and Payment for Foster Care Assistance.

(a) (No change.)

(b) The Texas Department of Family and Protective [ ~~and Regulatory~~ ] Services (DFPS) [ ~~(TDPRS)~~ ] foster care billing staff use the IMPACT System to pay DFPS [ ~~TDPRS~~ ] foster homes and contracted facilities.

(c) If a county pays for foster care for the care of a child who is ineligible for state-provided foster care assistance or if a child's funds are used, the rate must be the same rate as DFPS [ ~~TDPRS~~ ] pays for the same service level.

§700.331.Effect of SSI Eligibility on State-Paid Foster Care.

(a) A child who receives SSI benefits is eligible for state-paid foster care assistance if the cost of foster care exceeds the SSI payment and the child meets the eligibility requirements for state-paid foster care.

(b) The Texas Department of Family and Protective [ ~~and Regulatory~~ ] Services deducts the SSI income from the monthly payment for state-paid foster care.

§700.332.Effect of SSI Eligibility on Title IV-E [ ~~AFDC~~ ] Foster Care.

A child is not entitled to receive both SSI benefits and Title IV-E [ ~~aid to families with dependent children~~ ] foster care assistance.

§700.333.Effect of SSI Eligibility on MAO [ ~~Foster Care~~ ].

A child is not entitled to receive both SSI benefits and MAO [ ~~medical assistance only foster care assistance~~ ].

§700.345.Eligibility for Foster Care Recipients Placed Out of State or Placed in Texas from Other States.

(a) When a Title IV-E [ ~~an AFDC~~ ] foster care assistance recipient is placed out of state, the Texas Department of Family and Protective [ ~~and Regulatory~~ ] Services (DFPS) [ ~~(PRS)~~ ] continues to make [ ~~AFDC~~ ] foster care maintenance payments; but the receiving state becomes responsible for the Medicaid benefits. DFPS [ ~~PRS~~ ] furnishes the receiving state with Title IV-E eligibility information for payment of Medicaid benefits.

(b) When a state-paid or medical-assistance-only foster care recipient is placed out of state, DFPS [ ~~PRS~~ ] continues to provide both Medicaid benefits and foster care maintenance payments , as applicable .

(c) When a Title IV-E [ ~~an AFDC~~ ] foster care assistance recipient is placed in Texas from another state, the sending state continues to make Title IV-E [ ~~AFDC~~ ] foster care maintenance payments, but DFPS [ ~~PRS~~ ] provides the Medicaid coverage. The sending state furnishes DFPS [ ~~PRS~~ ] with Title IV-E eligibility information for payment of Medicaid benefits.

§700.346.Return to Foster Care.

(a) Subject to the availability of an appropriate licensed placement, a former foster youth may return to foster care if the following eligibility criteria are met:

(1) The youth was in the managing conservatorship of the Department of Family and Protective Services (DFPS) when the youth:

(A) Turned 18 years old; or

(B) Ran away from foster care;

(2) The youth is between the ages of:

(A) 18 and 21 years old and is;

(i) Enrolled or to be enrolled within 30 days of placement in a technical or vocational program;

(ii) Enrolled or to be enrolled within 30 days of placement in high-school or in a course of instruction to prepare for the high school equivalency examination; or

(iii) Returning on a break from college or a technical or vocational program for at least one month but no more than four months; or

(B) 18 and 22 years old and enrolled in and attending full time a high school or a program leading toward a high school diploma;

(3) The youth does not have a:

(A) Felony conviction of an offense under Title 5, Title 6, Chapter 29 of Title 7, Chapter 43 or §42.072 of Title 9, §15.031 of Title 4, or §38.17 of Title 8 of the Texas Penal Code (TPC), or any like offense under the law of another state or federal law; or

(B) A finding of physical or sexual abuse of a child in this state or any other state; and

(4) The youth signs a voluntary agreement to return to care.

(b) At the sole discretion of DFPS, a youth may be precluded from returning to foster care if the youth has a:

(1) Misdemeanor or felony conviction under the TPC or the Texas Controlled Substances Act, or any like offense under the law of another state or federal law; or

(2) Finding of abuse or neglect of a child in this state or any other state.

(c) Continuing eligibility for any youth is contingent upon compliance with all requirements. No benefits are available past the month the youth turns 21 years old unless the requirements of subsection (a)(2)(B) of this section are met, but in no event may benefits be paid under this provision past the month in which a youth turns 22 years old.

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 April 26, 2007.

TRD-200701586

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: June 10, 2007

For further information, please call: (512) 438-3437

40 TAC §700.322, §700.334

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

The repeal is proposed under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services; and HRC §40.021, which provides that the Family and Protective Services Council shall study and make recommendations to the Executive Commissioner and the Commissioner regarding rules governing the delivery of services to persons who are served or regulated by the department.

The repeal implements the Texas Family Code, §264.101 and §264.121.

§700.322.Eligibility in Placements Provided by Relatives.

§700.334.Additional Eligibility Requirements for Medicaid Assistance Only (MAO) Foster Care.

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 April 26, 2007.

TRD-200701587

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: June 10, 2007

For further information, please call: (512) 438-3437

Subchapter E. INTAKE, INVESTIGATION, AND ASSESSMENT

The Health and Human Services Commission proposes, on behalf of the Department of Family and Protective Services (DFPS), the repeal of §700.505, concerning priorities for investigation and assessment, and new §700.505, concerning priorities for reports of abuse and neglect, in its Child Protective Services chapter. The 79th Legislature, Regular Session, in Senate Bill 6, revised the Texas Family Code §261.301 and §261.3015. The revisions to §261.301 placed in statute the priorities for investigations, which were previously in rule. It also reduced the response time for Priority II reports from 10 days to 72 hours. The revisions to §261.3015(a) and (a-1) clarified that DFPS should screen out less serious cases of abuse or neglect in an effort to focus staff efforts on the more serious cases that require a full investigation. New §700.505 is a rewrite of the previous rule regarding priority reports of abuse and neglect and response times. The primary change is reducing the response time for Priority II reports from 10 days to 72 hours. CPS is responding within the 72-hour time frame by either initiating an investigation or, pursuant to Texas Family Code §261.3015, by forwarding the report to specialized screening staff.

Cindy Brown, Chief Financial Officer of DFPS, has determined that for the first five-years the proposed section will be in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section.

Ms. Brown also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be that DFPS response time for Priority II reports will be reduced from 10 days to 72 hours, which will increase child safety. There will be no effect on large, small, or micro-businesses because the proposed change does not impose new requirements on any business and does not require the purchase of any new equipment or any increased staff time in order to comply. There is no anticipated economic cost to persons who are required to comply with the proposed section.

Questions about the content of the proposal may be directed to Gail Blackwell at (512) 438-3863 in DFPS's Child Protective Services Division. Electronic comments may be submitted to Marianne.Mcdonald@dfps.state.tx.us. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-360, Department of Family and Protective Services E-611, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register .

HHSC has determined that the proposed section does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, do not constitute a taking under §2007.043, Government Code.

40 TAC §700.505

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

The repeal implements Texas Family Code §261.301 and §261.3015, as amended by the 79th Legislature, Regular Session.

§700.505.Priorities for Investigation and Assessment.

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 April 26, 2007.

TRD-200701588

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: June 10, 2007

For further information, please call: (512) 438-3437

40 TAC §700.505

The new section is proposed under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services; and HRC §40.021, which provides that the Family and Protective Services Council shall study and make recommendations to the Executive Commissioner and the Commissioner regarding rules governing the delivery of services to persons who are served or regulated by the department.

The new section implements Texas Family Code §261.301 and §261.3015, as amended by the 79th Legislature, Regular Session.

§700.505.Priorities for Reports of Abuse and Neglect.

(a) Child Protective Services (CPS) assigns priorities for reports of abuse and neglect based on the assessment of the immediacy of the risk and the severity of the possible harm to the child.

(1) Priority I reports concern children who appear to face an immediate risk of abuse or neglect that could result in death or serious harm.

(2) Priority II reports are all other reports of abuse or neglect that are not assigned a Priority I.

(b) Subject to the availability of funds, CPS must:

(1) Immediately respond to a report of abuse or neglect that is assigned a Priority I and involves circumstances in which the death of the child or substantial bodily harm to the child will imminently result unless the Department of Family and Protective Services (DFPS) immediately intervenes;

(2) Within 24 hours respond to a report of abuse or neglect that is assigned a Priority I, other than a report described in paragraph (1) of this subsection, by initiating an investigation; and

(3) Within 72 hours respond to a report of abuse or neglect that is assigned a Priority II by initiating an investigation or, pursuant to Texas Family Code §261.3015, by forwarding the report to specialized screening staff.

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 April 26, 2007.

TRD-200701589

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: June 10, 2007

For further information, please call: (512) 438-3437

Subchapter H. ADOPTION ASSISTANCE PROGRAM

The Health and Human Services Commission proposes, on behalf of the Department of Family and Protective Services (DFPS), the repeal of §700.801; new §700.801; and amendments to §§700.802 - 700.805, 700.820 - 700.823, 700.840, 700.841, 700.844 - 700.846, 700.850, 700.860, 700.880, and 700.881, concerning the adoption assistance program, in its Child Protective Services chapter. The original impetus for the changes is a provision in the Deficit Reduction Act (DRA) of 2005, P.L. 109-171, §7404. That provision alters the requirements governing eligibility determinations for adoption assistance benefits funded by Title IV-E of the Social Security Act. Specifically, the section provides that in cases in which IV-E eligibility is predicated upon eligibility for the Aid to Families with Dependent Children program (AFDC), the AFDC eligibility determination should no longer be made for both the month of removal and in the month the petition to adopt is filed. Rather, the AFDC eligibility determination should be made only for the month of removal. In addition to the changes necessitated by DRA, DFPS is making changes to Subchapter H, Adoption Assistance Program, so it is easier to understand and more consistent.

Section 700.801 is deleted and proposed as new. The definitions are alphabetized for easier access. With the exceptions noted below, the definitions are the same except for minor clarifications. The definition of "adoptive placement" is modified to better explain the time period and the requirements for an adoptive placement. The definition of "special needs child" and a cross reference to the relevant rule are added to eliminate confusion. The definition of "nonrecurring expenses" is added for clarification. The agency name and terminology are updated.

Section 700.802 is revised to eliminate superfluous language that is either contained in the rule or moved to another rule.

Section 700.803 clarifies the process used to determine Title IV-E and state-paid eligibility. The agency name and terminology are also updated.

Section 700.804 clarifies the meaning of the special needs definition for children who belong to certain racial and ethnic groups; describes acceptable types of proof of "reasonable efforts" to place a child without adoption assistance; and clarifies that in exceptional circumstances DFPS may deem an adoptive placement; however, the adoptive parents have the burden of proof. The agency name is also updated.

Section 700.805 clarifies the burden of proof for eligibility in cases involving children placed for adoption by a Licensed Child Placing Agency or other authorized entity.

Section 700.820 makes minor language revisions and adds reference to a rule for clarification purposes.

Section 700.821 clarifies that SSA determination must be prior to the finalization of the adoption. In order to comply with the Deficit Reduction Act of 2005, the rule specifies that the child's eligibility for AFDC need only be determined in the month in which the court proceedings that resulted in the order removing the child began and not also in the month the petition to adopt is filed.

Section 700.822 is revised to comply with the Deficit Reduction Act of 2005. The rule specifies that the child's eligibility for AFDC need only be determined in the month in which the court proceedings that resulted in the order removing the child began and not also in the month the petition to adopt is filed. The subsections are renumbered in accordance with the deletion, and the question is made consistent with the answer.

Section 700.844 is revised to add the payment ceilings and delete the out-of-date process for establishing adoption assistance rates.

Section 700.845 makes minor stylistic revisions.

Section 700.846 adds an explanation of circumstances in which DFPS may grant retroactive benefits in an adoption assistance application. Authority for such a retroactive grant exists in current rule; however, the rule change will offer additional specifics regarding the possible grant of retroactive benefits. The rule also clarifies that adoption assistance benefits may begin prior to consummation of the adoption.

Section 700.881 makes minor stylistic revisions.

Sections 700.823, 700.840, 700.841, 700.850, 700.860, and 700.880 update the agency name and make minor revisions.

Cindy Brown, Chief Financial Officer of DFPS, has determined that for the first five-year period the proposed sections will be in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections.

Ms. Brown also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be that the rules governing eligibility for adoption assistance will be easier to understand and consistent with corresponding federal provisions. Eligibility for this program is of great importance to many families in Texas so it is important that the requirements are explained as clearly as possible, and that the burden of proof for establishing eligibility, particularly in the context of fair hearings, is fully described. There will be no effect on large, small, or micro-businesses because the proposed change does not impose new requirements on any business and does not require the purchase of any new equipment or any increased staff time in order to comply. There is no anticipated economic cost to persons who are required to comply with the proposed sections.

Questions about the content of the proposal may be directed to Susan Klickman at (512) 438-3302 in DFPS's Child Protective Services Division. Electronic comments may be submitted to Marianne.Mcdonald@dfps.state.tx.us. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-361, Department of Family and Protective Services E-611, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register.

HHSC has determined that the proposed amendments, repeal, and new section do not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, do not constitute a taking under §2007.043, Government Code.

1. PROGRAM DESCRIPTION AND DEFINITIONS

40 TAC §700.801

The repeal implements the Texas Family Code, §162.302 and §162.304.

§700.801.What do certain words and terms in this subchapter mean?

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 April 26, 2007.

TRD-200701579

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: June 10, 2007

For further information, please call: (512) 438-3437

40 TAC §§700.801 - 700.805

The amendments and new section implement the Texas Family Code, §162.302 and §162.304.

§700.801.What do certain pronouns, words, and terms in this subchapter mean?

(a) The pronouns used in this subchapter have the following meanings:

(1) The pronouns "I," "my," "you" and "your" refer to the adoptive parent(s).

(2) The pronouns "we," "us," "our" and "DFPS" refer to the Texas Department of Family and Protective Services (DFPS) or any of its divisions or employees, including Child Protective Services (CPS).

(b) The words and terms used in this subchapter have the following meanings, unless otherwise specified or the context clearly indicates otherwise:

(1) Adoptive parent(s)--The person(s) who commit(s) to adopting a child who is placed for the purpose of adoption by DFPS, an LCPA, or another authorized entity that has managing conservatorship of the child.

(2) Adoptive placement--The period of time beginning when DFPS, the LCPA, or another authorized entity places the child with adoptive parents and ending at consummation of the adoption. The child must not be placed for the purpose of adoption until the child is legally free for adoption following termination of parental rights or death of the child's parents. The child must be placed by DFPS, the LCPA, or another authorized entity that has the managing conservatorship of the child. The child must be placed for adoption in accordance with licensing minimum standards established in the state where the LCPA is licensed or certified, including requirements for an approved home study and Title IV-E requirements regarding criminal background checks.

(3) AFDC eligible--A child qualified for aid under the Texas State IV-A Plan (as in effect on July 16, 1996), with the exception that the child's family maximum resource limit is $10,000. Requirements include that the child must live with a parent or specified relative and be deprived of parental support. Parental deprivation exists if one of the child's parents is dead, absent from the home, or has a mental or physical incapacity that prevents the parent from supporting or caring for the child, or principal wage earner parent is unemployed.

(4) Agreement or Adoption Assistance Agreement--The written contract for adoption assistance that is legally binding because both parties have signed it agreeing to all terms and conditions.

(5) Authorized entity--Any entity, such as another public agency or Tribe, with whom DFPS has a Title IV-E agreement, which permits the authorized entity to receive federal funding participation under Title IV-E of the federal Social Security Act.

(6) Complete application--All the forms and documents that must be filled out and received by DFPS to process a request for adoption assistance and to determine a child's eligibility.

(7) Deferred agreement--The legally binding, written contract to provide adoption assistance in the future if the need develops. A deferred agreement is used when the child is eligible for adoption assistance and you are able to meet the child's current needs, but you may be unable to meet the child's needs in the future if circumstances change.

(8) Licensed child-placing agency (LCPA)--An entity that is licensed or certified by the State of Texas or another state to place children for adoption.

(9) Nonrecurring expenses--A type of adoption assistance benefits that are one-time expenses directly related to the completion of the adoption process. Also see §700.850 of this title (relating to How do I get reimbursement of nonrecurring expenses?).

(10) Special needs child--A child who meets the definition described in §700.804 of this title (relating to Who is a special needs child?).

(11) State-paid adoption assistance--The state program for adoption assistance established under Texas Family Code, §162.302.

(12) Title IV-E--The federal program for adoption assistance established under Title IV-E of the Social Security Act, 42 U.S.C. §673.

§700.802.What is adoption assistance?

(a) Adoption assistance is a program designed to facilitate the adoption of children with special needs. [ ~~The program includes benefits to help meet the needs of your adopted child.~~ ]

(b) The benefits that may be provided under the program are:

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

(3) reimbursement of [ ~~one-time expenses directly related to completing the adoption process (~~ ]nonrecurring expenses[ ) ].

§700.803.Do all children placed for adoption by DFPS [ ~~PRS~~ ] get adoption assistance?

(a) No. Only a special needs child, in an approved adoptive placement, can qualify for adoption assistance. When we place a child for adoption, we first determine whether the child is eligible under Title IV-E. If the child is not eligible under Title IV-E but the child is a special needs child [ ~~income and resource limitations are met~~ ], then we will assess the child's eligibility [ ~~qualify the child~~ ] for the state-paid [ ~~state~~ ] adoption assistance program.

(b) (No change.)

§700.804.Who is a special needs child?

(a) The child must be less than 18 years old and meet one of the following criteria when the adoptive placement agreement is signed:

(1) (No change.)

(2) the child is at least two years old and a member of a racial or ethnic [ ~~minority~~ ] group that exits foster care at a slower pace than other racial or ethnic groups [ ~~traditionally creates a barrier to adoption~~ ];

(3) - (4) (No change.)

(b) (No change.)

(c) A reasonable effort must be made to find an adoptive placement without providing adoption assistance, unless doing so is against the child's best interests. Proof of such reasonable efforts may include:

(1) documentation that the child was registered on an adoption registry exchange for more than 60 days;

(2) documentation of any ongoing effort, whether through child welfare entities, government or private organizations, to locate an adoptive family; or

(3) one or more adoptive placements did not result in an adoption.

(d) For a child placed by DFPS where no adoptive placement agreement is signed, in exceptional circumstances, DFPS may deem that an adoptive placement was made, but it is your responsibility to provide sufficient documentary evidence of the beginning of the adoptive placement as defined in this subchapter.

§700.805.Can a child who is placed by an LCPA or authorized entity get adoption assistance?

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

(c) A special needs child placed for adoption by an LCPA or authorized entity is not eligible for the state-paid [ ~~state~~ ] adoption assistance program.

(d) If a child who is placed by an LCPA or authorized entity applies for adoption assistance, it is the responsibility of the child's parents and the LCPA or authorized entity to provide the documentation necessary to make an eligibility determination.

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 April 26, 2007.

TRD-200701580

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: June 10, 2007

For further information, please call: (512) 438-3437

2. TITLE IV-E ELIGIBILITY REQUIREMENTS

40 TAC §§700.820 - 700.823

The amendments are proposed under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services; and HRC §40.021, which provides that the Family and Protective Services Council shall study and make recommendations to the Executive Commissioner and the Commissioner regarding rules governing the delivery of services to persons who are served or regulated by the department.

The amendments implement the Texas Family Code, §162.302 and §162.304.

§700.820.How do I get Title IV-E adoption assistance for my child?

(a) To be eligible for any adoption assistance benefits, your child must be a special needs child and you must sign an agreement with us before the child's adoption is finalized. In addition, benefits are only available to those who meet:

(1) the federal law requirements of U.S. citizenship or other [ ~~special~~ ] immigration status [ ~~, as~~ ] described in §700.824 of this title (relating to What if the child is not a U.S. citizen?); and

(2) (No change.)

(b) If [ ~~When~~ ] the additional Title IV-E eligibility requirements , as described in §700.821 of this title (relating to What are the additional Title IV-E eligibility requirements?) are met, [ ~~as described in this division,~~ ] you may be entitled to monthly payments , [ ~~and~~ ] Medicaid coverage for your child , and [ ~~in addition to the reimbursement of~~ ] nonrecurring expenses.

(c) If [ ~~When~~ ] the additional Title IV-E eligibility requirements are not met, the only benefit you can receive is reimbursement of nonrecurring expenses, as described in §700.850 of this title (relating to How do I get reimbursement of nonrecurring expenses?).

(d) If an LCPA or authorized entity is managing conservator for the child you are adopting, you need to contact the child welfare agency in the state where you reside. We are only responsible for providing adoption assistance if:

(1) (No change.)

(2) you live in Texas and an LCPA or authorized entity is managing conservator for the child.

§700.821.What are the additional Title IV-E eligibility requirements?

A special needs child must be in an adoptive placement and meet one of the following conditions to be eligible for Medicaid and [ ~~possible~~ ] monthly payments under an agreement:

(1) The child is eligible for Supplemental Security Income (SSI) benefits, as determined by the Social Security Administration (SSA) prior to the finalization of the adoption [ ~~during the adoptive placement~~ ];

(2) We have already determined that the child was eligible for Title IV-E foster care based on AFDC eligibility; [ ~~We determine that the child is AFDC eligible both:~~ ]

~~[ ~~(A)~~ in the month that court proceedings began which resulted in the order removing the child from the home; and]~~

~~[ ~~(B)~~ in the month the adoption petition is filed;]~~

(3) We already determined that the child was eligible for Title IV-E adoption [ ~~foster care~~ ] assistance in a prior adoption [ ~~at removal, and the child is also AFDC eligible in the month the adoption petition is filed~~ ]; or

(4) (No change.)

§700.822.How do we [ ~~you~~ ] determine whether the child was AFDC eligible?

[ ~~(a)~~ ] To determine whether the child was AFDC eligible, we must consider the detailed circumstances of the home of the parent or relative from which the court ordered the child to be removed. If the child was no longer living in the home when the court ordered removal : [ , ]

(1) the child must have been living there at some point during the six months before the court removal proceedings began; and

(2) we must determine that the child would have been eligible for AFDC assistance had the child still been living in that home during the month the court proceedings began.

~~[ ~~(b)~~ We must also determine whether the child is still AFDC eligible at the time the adoption petition is filed.]~~

§700.823.What is necessary for a court order to be considered a removal?

(a) The [ ~~very~~ ] first order issued by the court in response to the petition to remove the child from the home must contain a judicial finding to the effect that it is contrary to the child's welfare, or not in the child's best interest, to remain in the home.

(b) - (c) (No change.)

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

Filed with the Office of the Secretary of State on April 26, 2007.

TRD-200701581

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: June 10, 2007

For further information, please call: (512) 438-3437

3. APPLICATION PROCESS, AGREEMENTS, AND BENEFITS

40 TAC §§700.840, 700.841, 700.844 - 700.846, 700.850

The amendments implement the Texas Family Code, §162.302 and §162.304.

§700.840.What is the application process for adoption assistance?

(a) You must file a complete application with the adoption assistance staff in the DFPS [ ~~PRS~~ ] office in your area. Some of the information you are asked to provide is unrelated to determining your child's eligibility, but it may be used to discuss and negotiate the amount of monthly payments, as described in §700.844 of this title (relating to How are monthly payment amounts determined?).

(b) - (c) (No change.)

§700.841.When do I find out if my child is eligible?

We send you written notification of our decision within 30 days after we receive your complete application. If you do not receive the notification or you believe your application is not being processed promptly, you should contact the supervisor of the adoption assistance staff in the DFPS [ ~~PRS~~ ] office where you filed the application.

§700.844.How are monthly payment amounts determined?

(a) - (c) (No change.)

(d) The maximum monthly payment amount depends upon the child's authorized service level (or level of care) at the beginning of the adoptive placement. The payment ceiling for Basic care is $400 per month; the payment ceiling for Moderate, Specialized, and Intense care is $545 per month. [ is reviewed and established by the Board of Protective and Regulatory Services ("the Board") on or before the beginning of each budgetary biennium. The Board may also review and adjust the maximum payment amount during the budgetary biennium, if necessary. Whenever the Board adopts a new maximum payment amount, the Board must specify the effective date for the new payment ceiling and whether it applies to all agreements or only to new ones. The Board's determination of the maximum payment amount is based upon at least the following considerations: ]

~~[ ~~(1)~~ the recommendation of PRS;]~~

~~[ ~~(2)~~ the requirements of state and federal law;]~~

~~[ ~~(3)~~ budgetary resources;]~~

~~[ ~~(4)~~ projections of the number of children in foster care that may need assistance to facilitate their adoption; and]~~

~~[ ~~(5)~~ whether a new payment amount will apply to all agreements or only to new ones.]~~

§700.845.Can my child get adoption assistance monthly payments in addition to Supplemental Security Income (SSI) benefits?

Only the Social Security Administration (SSA) can determine whether your child is eligible for SSI benefits. The SSA considers your family's financial resources in determining whether your child remains eligible for SSI benefits after adoption. If your child does remain eligible, the SSI benefits would be reduced by any amount you receive in adoption assistance monthly payments. If you choose to receive SSI benefits and do not sign an agreement with us before the adoption is final, you will not be eligible [ ~~cannot return later and ask~~ ] for adoption assistance if the SSI benefits stop after the adoption is final .

§700.846.How is the effective date of the agreement determined?

(a) Benefits are not available for any period of time before the effective date of the agreement. The effective date of the agreement cannot be before the month in which we receive your completed application. DFPS may, for good cause, grant retroactive benefits for a period not to exceed 12 months prior to receipt of the completed application if you can demonstrate that: [ the child meets all eligibility requirements. If the child already meets all eligibility requirements when you apply, the effective date of the agreement cannot be more than 12 months before we receive your complete application. Benefits are not available for any period of time before the effective date of the agreement. ]

(1) your child was eligible for adoption assistance prior to receipt of the completed application;

(2) DFPS made an error in determining that the child was not eligible for benefits; or

(3) DFPS caused a delay in the activation of benefits.

(b) (No change.)

§700.850.How do I get reimbursement of nonrecurring expenses?

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

(c) We must receive your claim for reimbursement no later than 18 months after the adoption is finalized. If your right to reimbursement is authorized by a DFPS [ ~~PRS~~ ] hearing order after the adoption is final, we must receive your claim as soon as possible.

(d) (No change.)

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

Filed with the Office of the Secretary of State on April 26, 2007.

TRD-200701582

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: June 10, 2007

For further information, please call: (512) 438-3437

4. CHANGES IN CIRCUMSTANCES

40 TAC §700.860

The amendment is proposed under Human Resources Code (HRC) §40.0505 and Government Code §531.0055, which provide that the Health and Human Services Executive Commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including the Department of Family and Protective Services; and HRC §40.021, which provides that the Family and Protective Services Council shall study and make recommendations to the Executive Commissioner and the Commissioner regarding rules governing the delivery of services to persons who are served or regulated by the department.

The amendment implements the Texas Family Code, §162.302 and §162.304.

§700.860.What if my child's or family's circumstances change?

(a) (No change.)

(b) If you are not already receiving the maximum monthly payment, you may request an increase when there is a change of circumstances affecting your adopted child's current needs or your family's ability to meet those needs. You must submit a written request for an increase to the local DFPS [ ~~PRS~~ ] office that processed your application and specify the change(s) in your child's or family's circumstances. Any request for an increase in monthly payment amount is subject to the requirements and limitations described in §700.844 of this title (relating to How are monthly payment amounts determined?).

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 April 26, 2007.

TRD-200701583

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: June 10, 2007

For further information, please call: (512) 438-3437

5. APPEALS AND HEARINGS

40 TAC §700.880, §700.881

The amendments implement the Texas Family Code, §162.302 and §162.304.

§700.880.What are my rights to appeal a DFPS [ ~~PRS~~ ] decision regarding adoption assistance benefits?

(a) You have the right to request a hearing whenever adoption assistance benefits are denied, delayed, suspended, reduced, or terminated. A hearing is also available when the processing of your application is unreasonably delayed. The hearing, as described in §730.1102 of this title (relating to Definitions), provides you the opportunity to appeal a decision made in a local DFPS [ ~~PRS~~ ] office to a higher authority within DFPS [ ~~PRS~~ ].

(b) - (c) (No change.)

§700.881.Can my child still get benefits if I did not sign an agreement before the adoption?

(a) (No change.)

(b) In the hearing, you have the burden to prove both:

(1) (No change.)

(2) that your child meets [ ~~met~~ ] all eligibility requirements [ ~~before the adoption~~ ].

(c) If we agree that your child is [ ~~was~~ ] eligible [ ~~before the adoption~~ ] and your failure to have a signed agreement should be excused, we can sign an agreed order with you and avoid having a hearing. The hearing officer must approve the agreed order, and you must sign an agreement consistent with its provisions, before you can receive benefits.

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 April 26, 2007.

TRD-200701584

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: June 10, 2007

For further information, please call: (512) 438-3437

Subchapter P. PREPARATION FOR ADULT LIVING

2. EDUCATION AND TRAINING VOUCHER PROGRAM

40 TAC §700.1615

The Health and Human Services Commission proposes, on behalf of the Department of Family and Protective Services (DFPS), an amendment to §700.1615, concerning what must an eligible youth do to qualify for participation in the ETV Program, in its Child Protective Services chapter. The purpose of the amendment is to allow youths who are age 16 and up and are exempt from compulsory high-school attendance to receive financial assistance to pay the costs of attendance for a technical or vocational program.

Cindy Brown, Chief Financial Officer of DFPS, has determined that for the first five-year period the proposed amendment will be in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the amended section.

Ms. Brown also has determined that for each year of the first five years the amendment is in effect the public benefit anticipated as a result of enforcing the amended section will be that youth reaching adult age and transitioning from the foster care system will be better prepared with adequate job skills resulting in a smoother transition into adulthood and independent living. There will be no effect on large, small, or micro-businesses because the proposed change does not impose new requirements on any business and does not require the purchase of any new equipment or any increased staff time in order to comply. There is no anticipated economic cost to persons who are required to comply with the proposed amendment.

Questions about the content of the proposal may be directed to Candice Holmes at (512) 438-2350 in DFPS's Child Protective Services Division. Electronic comments may be submitted to Marianne.Mcdonald@dfps.state.tx.us. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-362, Department of Family and Protective Services E-611, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register .

HHSC has determined that the proposed amendment does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under §2007.043, Government Code.

The amendment implements 42 U.S.C. §677(a)(6)(i).

§700.1615.What must an eligible youth do to qualify for participation in the ETV Program?

(a) To qualify for financial assistance under the ETV Program, an eligible youth must:

(1) meet one of the requirements in §700.1613(a) of this title (relating to Who can be eligible for the ETV Program?) [ ~~have a high school diploma or equivalent, or at least be beyond the age of compulsory school attendance (age 18)~~ ];

(2) have a high school diploma or equivalent, or be exempt from compulsory school attendance pursuant to Texas Education Code, §25.086(a)(6)(A);

(3) [ ~~(2)~~ ] be enrolled in an institution of higher education that falls within one of the following categories:

(A) an accredited or pre-accredited, public or nonprofit institution that provides a bachelor's degree or not less than a two-year program that provides credit towards a degree or certification;

(B) an accredited or pre-accredited, public or nonprofit institution that provides not less than a one-year program of training to prepare students for gainful employment in a recognized occupation; or

(C) an accredited or pre-accredited, public or nonprofit institution, or a private institution, that has been in existence for at least two years and that provides a program of training to prepare students for gainful employment in a recognized occupation; and

(4) [ ~~(3)~~ ] complete and file an application and required documentation with the ETV coordinator.

(b) (No change.)

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

Filed with the Office of the Secretary of State on April 26, 2007.

TRD-200701585

Gerry Williams

General Counsel

Department of Family and Protective Services

Earliest possible date of adoption: June 10, 2007

For further information, please call: (512) 438-3437