Adopted Sections An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 16. ECONOMIC REGULATION Part III. Texas Alcoholic Beverage Commission Chapter 55. Bingo Regulation Bingo Regulation and Tax 16 TAC sec.55.545 The Texas Alcoholic Beverage Commission adopts an amendment to sec.55.545, concerning licenses, fees, and bonds for conduct of bingo and commercial lessor, without changes to the proposed text as published in the October 25, 1991, issue of the Texas Register (16 TexReg 5952). The amendment adds subsection (b) (4) to specify bond requirements for applicants for a commercial lessor's license, who are now required to pay a bingo rental tax. The amendment is adopted to implement the imposition of the bingo rental tax by Texas Civil Statutes, Article 179d, Bingo Enabling Act, sec.2B, as added by the 72nd Legislature, First Called Session, 1991, House Bill 11. The President of the Bingo Operators of Texas suggested that the bond refund provision be amended to waive bond based on payment history of sales taxes. However, the Bingo Division no longer has computer access to sales tax payment records that would be necessary to do that. That commentor and the primary operator for Knights of Columbus Council #8156 both thought the period of good payment history required before the bond is refunded be shortened, the operator specifically suggesting a reduction from seven calendar quarters to three calendar quarters. The commission believes that the seven quarter period is needed to adequately guarantee tax payments to the State. The amendment is adopted under Texas Civil Statutes, Article 179d, sec.16(a), which provide the commission with the authority to adopt rules for the enforcement and administration of the Bingo Enabling Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 7, 1992. TRD-9202011 Joe Darnall General Counsel Texas Alcoholic Beverage Commission Effective date: February 28, 1992 Proposal publication date: October 25, 1991 For further information, please call: (512) 465-4904 16 TAC sec.55.547 The Texas Alcoholic Beverage Commission adopts an amendment to sec.55.547, concerning books and records-bingo licenses, without changes to the proposed text as published in the October 25, 1991, issue of the Texas Register (16 TexReg 5954). The amendment amends subsection (a) and (b), and adds subsection (e) to require keeping of rental records by commercial lessors and to require authorized organizations to keep records on prize fees. The amendment is adopted to implement Texas Civil Statutes, Article 179d, Bingo Enabling Act, sec.sec.2B, 19B, and 20, as added or amended by the 72nd Legislature, First Called Session, 1991, House Bill 11. The president of the Bingo Operators of Texas commented that commercial lessors should not be required to send in or keep detailed records on their rental receipts when the commission already has the same information available in the records of the lessee organizations. The lessors are not required to include this detailed information on their tax return but only to keep a receipts journal. This journal will separate out the commercial lessor's bingo rental receipts from any other business activities in which the lessor is involved. By recording the dates on which rental checks are received and are deposited, the journal will assist in preventing what are in effect prohibited loans from a lessor to a lessee. The amendment is adopted under Texas Civil Statutes, Article 179d, sec.16(a), which provide the commission with the authority to adopt rules for the enforcement and administration of the Bingo Enabling Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 7, 1992. TRD-9202009 Joe Darnall General Counsel Texas Alcoholic Beverage Commission Effective date: February 28, 1992 Proposal publication date: October 25, 1991 For further information, please call: (512) 465-4904 16 TAC sec.55.548 The Texas Alcoholic Beverage Commission adopts an amendment to sec.55.548, concerning general restrictions on the conduct of bingo, without changes to the proposed text as published in the October 25, 1991, issue of the Texas Register (16 TexReg 5955). The amendment amends subsection (c)(1) to provide that a licensed commercial lessor that leases premises to a licensed organization may not charge rent in excess of $600 for each day that bingo is conducted by that lessee/sublessor organization. The amendment is adopted to clarify an ambiguity in Texas Civil Statutes, Article 179d, sec.11a(a), as to what days are referred to in the $600 per day rental limit in that provision. Three comments were received concerning the proposed rule. Two attorneys expressed the opinion that the statutory language is not ambiguous. One of the attorneys stated that if the statute is ambiguous, the ambiguity is whether rent may be charged for days on which bingo is not conducted. He also contended that lessor/conductors are not treated differently in the Bingo Enabling Act. A commercial lessor commented that she is unable to make a return on her investment under the limits in the rule. The commission believes the amendment is needed to clarify an ambiguity in the Bingo Enabling Act, as to whether rental charges to lessee/sublessors is limited to $600 per day that lessee/sublessor conducts bingo, per day that anyone conducts bingo, or per day whether or not bingo is conducted. The Bingo Enabling Act treats lessee/sublessors which are also licensed to conduct bingo differently from for- profit lessors in sec.11a(a), 2(10)(B), 11(d), and 13(n)(1). The commission is also trying to carry out the basic purpose of that Act to assist authorized organizations in raising money for their charitable purposes. The amendment is adopted under Texas Civil Statutes, Article 179d, sec.16(a), which provide the commission with the authority to adopt rules for the enforcement and administration of the Bingo Enabling Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 7, 1992. TRD-9202007 Joe Darnall General Counsel Texas Alcoholic Beverage Commission Effective date: February 28, 1992 Proposal publication date: October 25, 1991 For further information, please call: (512) 465-4904 16 TAC sec.55.550 The Texas Alcoholic Beverage Commission adopts an amendment to sec.55.550, concerning bingo reports without changes to the proposed text as published in the October 25, 1991, issue of the Texas Register (16 TexReg 5956). The amendment amends subsections (a), (b), (c), and (d) to provide for the reporting and payment of the fee on prizes by licensed authorized organizations and the bingo rental tax by licensed commercial lessors. The amendment also amends subsection (a) to provide for payment of the bingo gross receipts tax to the commission, and to delete the requirement that a copy of the quarterly report for gross receipts tax be filed with the Comptroller. The amendment is adopted to implement Texas Civil Statutes, Article 179d, Bingo Enabling Act, sec.sec.2B, 19B, and 20, as added or amended by the 72nd Legislature, First Called Session, House Bill 11. Comments by the public about the proposed amendment were presented to senior staff members of the Commission at a public hearing in Austin on November 18, 1991. Twenty-two persons testified at that hearing, of who, 15 commented on this proposed amendment. All comments are available for public inspection at the Texas Alcoholic Beverage Commission Headquarters, 5806 Mesa Drive, Austin, Texas 78731. Most commenters requested a more frequent tax reporting period than the present quarterly reporting period, to increase the frequency with which they could take the $15,000 tax exemption. Five commenters recommended biweekly reporting, three commenters recommended a shorter reporting period without naming a specific period, and two commenters recommended different reporting periods by gross receipts category. These recommendations were considered to be beyond the scope of this proposed rule and are addressed in a separate proposed rule dealing with the tax reporting period. Two commenters representing licensed organizations, the President of the Bingo Operators of Texas, and the representative of the Association of Texas Bingo Licensees recommended that the tax be computed based on adjusted gross receipts (gross receipts less prizes). This would require legislative action to amend the Bingo Enabling Act and cannot be done by rule. The President of the Bingo Operators of Texas also recommended that the tax not be collected on instant bingo. The Attorney General has determined in Opinion DM-62 that the commission may not waive the gross receipts tax on instant bingo without action by the legislature to waive the gross receipts tax on instant bingo. The amendment is adopted under Texas Civil Statutes, Article 179d, sec.16(a), which provide the commission with the authority to adopt rules relating to the enforcement and administration of the Bingo Enabling Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 7, 1992. TRD-9202008 Joe Darnell General Counsel Texas Alcoholic Beverage Commission Effective date: February 28, 1992 Proposal publication date: October 25, 1991 For further information, please call: (512) 465-4904 16 TAC sec.55.553 The Texas Alcoholic Beverage Commission adopts an amendment to sec.55.553, concerning books and records-distributors and manufacturers, without changes to the proposed text as published in the December 27, 1991, issue of the Texas Register (16 TexReg 7689). The amendment amends subsection (a)(1)(B) to require that general sales invoices contain certain additional information and adds subsection (d) adopting a sample general sales invoice. The amendment allows better tracking of bingo supplies and assists licensed organizations in maintaining internal controls on their bingo inventories. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179d, sec.16(a), which provide the commission with the authority to adopt rules for the enforcement and administration of the Bingo Enabling Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 7, 1992. TRD-9202013 Joe Darnall General Counsel Texas Alcoholic Beverage Commission Effective date: February 28, 1992 Proposal publication date: December 27, 1991 For further information, please call: (512) 465-4904 16 TAC sec.55.555 The Texas Alcoholic Beverage Commission adopts an amendment to sec.55.555, concerning minimum charitable distribution, without changes to the proposed text as published in the October 25, 1991, issue of the Texas Register (16 TexReg 5955). The amendment allows a credit for bingo rental taxes paid. The amendment is adopted to allow a credit for the bingo rental tax imposed by Texas Civil Statutes, Article 179d, Bingo Enabling Act, sec.2B, as added by the 72nd Legislature, First Called Session, 1991, House Bill 11. Two representatives of organizations licensed to conduct bingo recommended that organizations be given a longer time than one quarter to meet their minimum charitable distribution requirement. A commercial lessor commented that the highest-grossing class of licensed organizations needs help in meeting the minimum charitable distribution requirement. The representative of a state veteran's organization and the representative of B.I.N.G.O. (an association of bingo licensees) and of an individual licensed organization agreed with the proposed rule in that it does not increase the limit of $11,000 on total credits toward meeting the minimum charitable distribution requirement. The Bingo Enabling Act, sec.19a(k) already allows the commission to consider the past year's charitable distributions by an organization which fails to meet the minimum charitable distribution limit for one quarter. The commission does not believe that an increase in the limit on credits toward the minimum charitable distribution is needed at this time. The commission staff will examine quarterly reports under the new tax rate to see if future experience shows a need for an increase in this limit. The amendment is adopted under Texas Civil Statutes, Article 179d, sec.16(a), which provide the commission with the authority to adopt rules for the enforcement and administration of the Bingo Enabling Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 7, 1992. TRD-9202010 Joe Darnall General Counsel Texas Alcoholic Beverage Commission Effective date: February 28, 1992 Proposal publication date: October 25, 1991 For further information, please call: (512) 465-4904 Part IV. Texas Department of Licensing and Regulation Chapter 60. Texas Commission of Licensing and Regulation Subchapter C. Fees 16 TAC sec.60.68 The Texas Department of Licensing and Regulation adopts new sec.60.68, concerning the general powers and duties of the commission to adopt rules, without changes to the proposed text as published in the November 22, 1991, issue of the Texas Register (16 TexReg 6733). This section establishes fees for the Elimination of Architectural Barriers Program. The method of collecting fees will remain the same. No comments were received regarding adoption of the new section. The new section is adopted under Texas Civil Statutes, Article 9100, which provide the Texas Commission of Licensing and Regulation with the authority to set fees to cover the cost of administering programs regulated by the department. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 4, 1992. TRD-9201848 Larry E. Kosta Executive Director Texas Department of Licensing and Regulation Effective date: February 26, 1992 Proposal publication date: November 22, 1991 For further information, please call: (512) 463-3127 TITLE 22. EXAMINING BOARDS Part XXXI. Texas State Board of Examiners of Dietitians Chapter 711. Dietitians 22 TAC sec.sec.711.4-711.7, 711.9, 711.11, 711.12 The Texas State Board of Examiners of Dietitians adopts amendments to sec.sec.711.4-711.7, 711.9, 711.11, and 711.12, without changes to the proposed text as published in the September 20, 1991, issue of the Texas Register (16 TexReg 5176). The amendments concern dietitians and update the requirements for licensure to comply with the provisions covering the regulation of dietitians in Texas Civil Statutes, Article 4512h. The amendments will clarify the academic requirements for licensure; clarify the experience requirements for examination; change the hours required for individual experience programs for graduate assistantships; modify the application procedures by not requiring transcripts of persons registered by the Commission on Dietetic Registration; waive the examination requirements for applicants who are registered in active status at the time of application; modify the application procedures by not requiring transcripts of persons registered by the Commission on Dietetic Registration; modify requirements for provisional licensed dietitian upgrades; amend the name change documentation requirements; and add license renewal procedures for active military duty/personnel. One comment was received from an individual in support of the changes. No comments were received from groups or associations. The amendments are adopted under Texas Civil Statutes, Article 4512h, sec.6, which provides the Texas State Board of Examiners of Dietitians with the authority to adopt rules to implement the Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 6, 1992. TRD-9201901 Gracie Specks, RD/LD Chairman Texas State Board of Examiners of Dietitians Effective date: February 27, 1992 Proposal publication date: September 20, 1991 For further information, please call: (512) 834-6601 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 325. Solid Waste Management Subchapter A. General Information 25 TAC sec.325.5 The Texas Department of Health (department) adopts the amendments to sec.325.5 and sec.325.136, concerning solid waste management, with changes to the proposed text as published in the November 12, 1991, issue of the Texas Register (16 TexReg 6535). The adopted amendment to sec.325.5 concerns definitions to clarify the meaning of certain municipal solid waste terms used in the chapter; and clarify which wastes are considered to be special wastes. The adopted amendment to sec.325.136 includes requirements which had been included in proposed new sec.325.137. This language concerns the prohibition of the landfill disposal of certain wastes as mandated by Senate Bill 1340, 72nd Legislature, 1991, and a phased-in prohibition on landfill disposal of used oil filters. The remaining language in adopted sec.325.136 is updated to clarify the status of waste from conditionally exempt non-industrial small quantity generators. The department received a number of comments concerning the definition of "special waste" in sec.325.5. The comments received and the department's responses are as follows. 1. The department itself felt that the introductory phrase, "includes, but are not limited to" did not provide adequate notice of the department's concerns and intent to regulate certain types of waste based on enforcement experience. Accordingly, the department has made changes to the language in the definition to specifically identify all wastes which are of concern to the department when considered for disposal in municipal landfills permitted by the department. 2. Concerning subparagraph (C), a commenter requested a better explanation of the phrase, "special wastes from health care related facilities," because some individuals might not recognize the phrase as referring to medical waste. The department agrees and has added language for clarification. 3. Concerning subparagraph (D), one commenter suggested that the reference to "water treatment supply" sludges should be changed to "water supply treatment plant" sludges for consistency with federal regulations. The department agrees and has made the change. Another commenter objected to the inclusion of water supply treatment plant sludges with wastewater treatment plant sludges. The department responds by stating that sec.325.5 only identifies or defines "special waste" and that the handling procedures for each type of sludge are specified elsewhere in the rules. The grouping of terms in sec.325.5 was intended to assist the regulated community by keeping types of waste which might be controlled by departments of municipal governments or municipal utility districts together in the rules. 4. Concerning subparagraph (J), the department made a change for clarification purposes in the language describing liquid food or beverage products. 5. Concerning subparagraph (Q), one commenter requested that the reference to "materials from oil, gas, and geothermal facilities subject to regulation by the Railroad Commission of Texas" be changed to cite the Texas Natural Resources Code (TNRC) and another title of the Texas Administrative Code (TAC), and to limit the reference to those materials as a special waste when they are disposed of at a facility permitted by the department. While the department agrees with the request in principle, the department believes that rules which refer to other rules or codes will cause confusion in the regulated community normally governed by these rules. Accordingly, the department has not adopted the requested references; however, the department considers it appropriate to have language in the definition concerning the limitation to such materials only when handled at facilities permitted by the department and has added such language. 6. Concerning subparagraph (R), a commenter expressed concern that the proposed inclusion as a "special waste" of waste generated outside the boundaries of the State of Texas which contains any industrial waste; waste associated with oil, gas, and geothermal exploration, production, or development activities; or other items specifically listed as a special waste would be too restrictive. In response, the department believes that waste generators outside the State of Texas should not be allowed to dispose of wastes in municipal landfills when generators inside the state would not be allowed to do so. Since some states make no distinction between industrial, commercial, and residential wastes, or distinguish only between hazardous and nonhazardous wastes, the department feels an obligation to review out-of-state wastes to ensure the wastes received for disposal meets the standards established for wastes generated in the state. 7. Concerning subparagraph (S), a commenter requested the deletion from the definition the phrase, "any waste stream other than garbage, refuse, or rubbish", because this phrase is inconsistent with other definitions in other (unspecified) sections of the rules and makes any waste a special waste. As stated previously, the department is listing all items in the definition which are considered to be a special waste in order to provide a clear statement of what wastes are of concern and provide clear notice of the department's intent to regulate the disposal of specified materials in municipal landfills. Concerning proposed definitions for "topsoil", "transfer station", "transportation unit", and "septage" the department is not adopting them because they will be reviewed by the Texas Water Commission for further study. Concerning sec.325.136(b)(9), no comments were received; however, an editorial change was made to delete the reference to free liquids. Concerning proposed sec.325.137(4) and (5), commenters requested clarification of the potential penalties for violations of the provisions. The department's response is that the prohibitions on the landfill disposal of lead acid batteries and used oil are mandated by Senate Bill 1340, which also mandates criminal (misdemeanor) penalties for violations associated with landfill disposal of these items. Since the department is not adopting proposed sec.325.137(4) and (5), the department is placing the provisions as mandated in Senate Bill 1340 in separate subsections (c) and (d) of adopted sec.325.136 for purposes of clarity and because the statutory references are to different chapters in the Health and Safety Code. The department also has added language referring to the appropriate statute for penalties. The department notes that the improper disposal other items included in adopted sec.325.136, existing and new, do not carry criminal sanctions. One commenter recommended that the rule should be limited to items under the department's jurisdiction. Senate Bill 1340 makes no distinction as to the source of used oil or lead acid batteries. The prohibition on landfill disposal is clearly applicable to lead acid batteries and/or used oil irrespective of the identity or classification of the generator. There is no exclusion for household generators or for activities associated with oil, gas, or geothermal exploration, development, and production. Therefore, this recommendation is not accepted. Concerning proposed sec.325.137(6), the department received numerous comments which will be discussed by grouping related comments together. Several comments concerning the department's authority to adopt the rule were received. Some of these comments questioned the intent of Senate Bill 1340's provisions concerning used oil and waste reduction. The department's response is that Senate Bill 1340 clearly states the legislature's objective to eliminate disposal of used oil by burial in landfills, by land application, or by discharge into the waters of the state. These prohibitions apply irrespective of the source of the used oil. The primary objective of the portion of Senate Bill 1340 establishing a program for used oil collection, management and recycling is the management, of used oil from "do it yourself" (DIY) sources. Although Senate Bill 1340 does not specifically address the management of used oil filters, the department is of the opinion that the legislature has expressed a clear concern about the effect of the mismanagement of used oil on the environment. Based on the "Motor Vehicle Oil Filter Recycling Study" by Konefes and Olson (as known as the "Iowa Study"), it has been estimated that as much as two million gallons of used oil, carried in used filters, are generated and discarded in Texas each year. Legislative concerns are related to resource conservation as well as to environmental pollution. For example, one gallon of used oil can produce 2 1/2 quarts of lube oil instead of consuming 42 gallons of crude oil. One quart of oil could spoil the taste of 250,000 gallons of water. The legislature previously established a preference for methods of the management of municipal solid waste, and assigned last or least desirable status to landfill disposal as a method of management. The legislature also established (Senate Bill 1340) a goal of waste reduction of 40% by 1994. The department believes that the legislature intended a reduction in the amount of waste placed in landfills, not a reduction in volume through compaction of waste. The responsibility for management of municipal solid waste was assigned to the department by the legislature. This includes the collection, transportation, processing, reclamation, and recycling as well as the disposal of waste. Therefore, the department believes it has full authority to regulate the disposal of used oil filters including a prohibition of landfill disposal of used oil filters. Since the department is not adopting proposed new sec.325.137, the department is including the appropriate regulatory language in adopted sec.325.136(e). Two commenters raised the question of equal treatment under law regarding the timed phase-in of the prohibition on the landfill disposal of used oil filters. Several commenters expressed concerns related to the phased prohibition of landfill disposal of used oil filters because of the effect of the rules on generators located in rural areas. Other commenters expressed concerns about the timing of the phase-in, the use of county population and relationship to an interstate highway location, the availability of equipment, notification of generators, and the "hazardous characteristics" of crushed filters. One proposal was that the prohibition should be based on the amount of filters generated irrespective of location. The department's response is that from a regulatory standpoint, this would be a simpler plan to implement and less taxing on agency enforcement resources; however, it does not adequately address the concerns that commercial services would not be available in rural or less populated areas of the state at the same time that metropolitan areas achieved such services. Since used oil filters vary in size, shape, and weight, a prohibition based solely on weight of filters generated could pose a severe hardship on generators who service heavy transport vehicles or machinery in rural areas. The weight of a few large filters could exceed the regulatory limit, but the volume or number of filters would not initially support commercial collection or processing. The proposed phase-in of the prohibition on landfill disposal of used oil filters is related to the generator location based on county population and geographic location. The larger the population of the county, the larger the number of non- household generators requiring a collection service and thus a larger demand for such services. As the network of collection services develops in densely populated areas, the services could support expansion into less densely populated areas. The geographic system was selected based on the location of existing commercial operations and the rational that service would expand into South Texas, West Texas, and the panhandle region less rapidly than into areas closer to the existing bases of operations. The department recognizes that commercial services may not expand uniformly or as rapidly as anticipated. The rules allow the department to delay the implementation dates, by county or by groups of counties, if services are not available. The language of the adopted sec.325.136(e) has been changed to clarify the intent of the rule. The extension is not limited to 60 days, but can be repeated in increments of 60 days as deemed necessary. In response to comments that the implementation date for the crushing or processing of oil filters starting March 1, 1992, would not allow enough time for trade associations to inform all members of the rules and would not allow time for generators to evaluate options based on their situation, or allow time, after evaluation, to obtain the selected equipment; the department is postponing the implementation date for the requirement to crush or process filters until June 1, 1992. The additional dates for the prohibition of the disposal of filters, crushed or uncrushed, have been adjusted accordingly and set at approximately 60-day intervals. Again, the department notes that the rules allow the department to delay the deadline dates if necessary. Several commenters provided information from studies related to determining whether or not crushed or drained filters exhibited the characteristics of a hazardous waste. The department does not challenge these studies with respect to establishment of the status of the filters as a nonhazardous waste under federal regulations. Several commenters requested that the landfill disposal of crushed, crushed and drained, or just drained filters be continued. The department's response is that the lubrication service industry's own information indicates simple draining of used oil filters for 12 hours removes 50-60% of the oil from the filter. This represents a significant amount of used oil which can be simply recovered; however, given the estimated number of filters used annually (approximately 20 million by industry estimates), the amount of used oil retained in "drained" filters is substantial. Even when the filter is crushed, an estimated 10 to 20% of the used oil could remain in the filter. Assuming that draining the filter removes 50% of the oil and that crushing removes an additional 20 to 30%, crushed and drained filters would still convey approximately 200,000 gallons of used oil into landfills along with the metal filter housing. The department also notes that the Environmental Protection Agency has indicated an intent to exempt used oil and used oil filters from regulation as hazardous wastes if they are recycled. A number of comments were received concerning the effect of adopted sec.325. 136(e) on companies with multiple locations in different counties. Historically, each site of generation has been considered as a separate generator, irrespective of ownership; therefore, the department should apply the rule to each separate location. This could mean that different units within a given business would have different compliance dates. The department believes that it would not be fair to treat similar facilities within a given county differently. The department will enforce the rules based on the county where a generator is located, and will consider the transfer of used filters from a site in a more populated county to a site in a less populated county for the purpose of avoiding the landfill disposal prohibition a violation of the rules. Several comments were received from solid waste disposal facility operators concerning their liability if used filters were received by their facility hidden in loads of waste material delivered to the facility. The department's response is that it intends to be guided by the language of Senate Bill 1340 regarding waste transporters and waste disposal facilities who unknowingly collect or receive used oil commingled with other solid waste and has added appropriate language to the adopted rules. Since used filters from do-it- yourselfers (DIY) are not banned until April 1994, the department expect to find small numbers of used filters in waste at landfills. Enforcement action against transporters or disposal facilities would not be taken unless significant numbers of filters were found together in a single load of waste or in a single location on the working face of a landfill. In such cases, the department would consider the circumstances and how much knowledge of the waste the transporter or disposal site operator could reasonably be expected to have. In general most of the comments received expressed support for the idea of prohibiting landfill disposal of used oil filters, but the commenters, for various reasons, wanted adopted sec.325.136(e) withdrawn or delayed. The intent of the rule is to conserve our resources (oil and steel) through resource recovery and recycling; and to protect the environment by elimination, over time, of a potential source of pollution in landfill disposal sites. Some progress has been made as commercial generators have begun to recycle used filters; however, it has been the past experience of the solid waste program staff that many people express support for recycling objectives but will not implement policies to accomplish an objective until required to do so by rule. Some retrogression has been reported in filter recycling. The department does not expect the automotive service industry to pay for the disposal of items which they have not sold or have had the opportunity to recover their expenses. The department commends the quick lube industry for their willingness to accept used oil from individual DIY sources, and requests the industry's participation in the used oil recycling program mandated by the legislature. The acceptance of used filters are not, at present, included in this program. The department does not believe a small increase in cost due to disposal requirements will drive people into the DIY arena. Whether or not environmentally concerned citizens will utilize the services of the quick lube industry in order to protect the environment because the industry recycles filters, as has been projected by some commenters, remains to be seen. A number of ideas concerning funding of programs for the disposal of DIY filters were received. The department does not have statutory authority to implement these suggestions. A summary of these ideas will be submitted to the Municipal Solid Waste and Resource Recovery Advisory Council for consideration. The department requests suggestions from interested parties on how to address the problem of payment for the disposal of DIY used filters. In addition, the department made editorial changes throughout the sections for purposes of clarity. The associations, groups, and agencies who commented on the sections are as follows. The General Land Office; ProCycle Metals, Inc.; ProCycle Oil, Inc.; Texas Water Commission were for the rules in their entirety. The Automotive Wholesalers of Texas; Convenient Automotive Services Institute; National Association of Independent Lubes; Rapid Oil Change, Inc.; Texas Motor Transportation Association were opposed to the rules in their entirety. The Automotive Service Association of Texas; Champion Lube Center, Inc.; City of Abilene; City of Austin; City of Seminole; Fugro-McClelland Environmental, Inc.; Genie Lube Center; Lube 'n Go; Lube Time, Inc.; Pennzoil Company; Rick Dube Auto Service; Sanifill, Inc., Star Enterprise, Inc.; Texaco USA; Texas Automobile Dealers Association; Texas Disposal Systems; Texas Mid-Continent Oil & Gas Association; Texas Municipal League; and Western Waste Industries were generally supportive of the rules; however, they had concerns and recommendations for change. The amendment is adopted under the Health and Safety Code, sec.361.011, which establishes the department's jurisdiction for municipal solid waste management; sec.361.024, which provides the Board of Health (board) with authority to adopt rules to manage municipal solid waste; and sec.12.001, which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. sec.325.5. Definitions. The following words, terms, and abbreviations, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Other definitions pertinent to specific sections are contained within the appropriate sections. CFR-Code of Federal Regulations. Special waste-Any solid waste or combination of solid wastes that because of its quantity, concentration, physical or chemical characteristics, or biological properties require special handling and disposal to protect the human health or the environment. If improperly handled, transported, stored, processed or disposed of, or otherwise managed, it may pose a present or potential danger to the human health or the environment. Special wastes are: (A)-(B) (No change.) (C) special wastes from health care related facilities (refers to certain items of medical waste); (D) municipal wastewater treatment plant sludges, other type domestic sewage treatment plant sludges, and water supply treatment plant sludges; (E)-(F) (No change.) (G) wastes from commercial or industrial wastewater treatment plants; air pollution control facilities; and tanks, drums, or containers used for shipping or storing any material that has been listed as a hazardous constituent in 40 Code of Federal Regulations Part 261, Appendix VIII, but has not been listed as a commercial chemical product in 40 Code of Federal Regulations, sec.261.33(e) or (f); (H)-(I) (No change.) (J) drugs, contaminated foods, or contaminated beverages, other than those contained in normal household waste; (K) pesticide (insecticide, herbicide, fungicide, or rodenticide) containers; (L) (No change.) (M) incinerator ash; (N) petroleum product, crude oil, or chemically contaminated soils; (O) used oil; (P) light ballasts and/or small capacitors containing polychlorinated biphenyl (PCB) compounds; (Q) wastes from oil, gas, and geothermal activities subject to regulation by the Railroad Commission of Texas when those wastes are to be processed, treated, and/or disposed of at a solid waste management facility permitted under this chapter; (R) waste generated outside the boundaries of the State of Texas which contains: (i) any industrial waste; (ii) any waste associated with oil, gas, and geothermal exploration, production, or development activities; or (iii) any item listed as a special waste in this paragraph; (S) any waste stream other than household or commercial garbage, refuse, or rubbish; (T) lead acid storage batteries; and (U) used oil filters from internal combustion engines. TDWR-Texas Department of Water Resources (currently the Texas Water Commission). TWC-Texas Water Commission. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 3, 1992. TRD-9201954 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: February 27, 1992 Proposal publication date: November 12, 1991 For further information, please call: (512) 834-6680 Subchapter F. Operational Standards for Solid Waste Land Disposal Sites Other Operational Standards for Type I, II, III, and IV Sites 25 TAC sec.325.136 The amendment is adopted under the Health and Safety Code, sec.361.011, which establishes the department's jurisdiction for municipal solid waste management; sec.361.024, which provides the Board of Health (board) with authority to adopt rules to manage municipal solid waste; and sec.12.001, which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. sec.325.136. Disposal of Special Wastes. (a) The disposal of special wastes which are not specifically identified in subsections (b), (c), (d) , or (e) of this section; or in sec.325.135 of this title (relating to Industrial Wastes); or in sec.325.137 of this title (relating to Disposal of Class I Wastes), requires prior written approval from the Bureau of Solid Waste Management (bureau). (1)-(6) (No change.) (b) Receipt of the following special wastes does not require written authorization from the bureau for acceptance provided the waste is handled in accordance with the noted provisions for each waste. (1)-(2) (No change.) (3) Water supply treatment plant sludges containing a minimum of 10% solids, and which are note hauled in vacuum trucks, may be accepted at a Type I, II, or III municipal solid waste site. (4) Stabilized sludges from domestic wastewater treatment plants containing a minimum of 10% solids, which are not hazardous and are not hauled in vacuum trucks, may be accepted at a Type I, II, or III municipal solid waste site. Quantities shall be limited to that which can be adequately handled at the site without creating odor problems and shall be placed on the working face along with other solid waste and covered with soil or solid waste on the day received. (5) Unstabilized sludges, which have passed through primary and secondary digesters, from domestic wastewater treatment plants may be accepted at a Type I municipal solid waste site without further written authority when the sludge is: (A) composed of at least 10% solids, and is hauled in other than vacuum trucks (for vacuum truck wastes see subsection (a) (3) of this section); (B)-(D) (No change.) (6) Friable asbestos waste may be accepted at a Type I site in accordance with the procedures in subparagraphs (A)-(G) of this paragraph. (A) The site operator contemplating acceptance of friable asbestos waste shall notify the regional director of environmental and consumer health protection in the appropriate department regional office or the Surveillance and Enforcement Division of the bureau in Austin. (B) Delivery of the friable asbestos waste to the site shall be coordinated with the on-site supervisor so the waste will arrive at a time it can be properly handled and covered. (C) Friable asbestos waste shall be accepted at the site only in a wetted condition and in tightly closed and unruptured containers or bags as approved by TACB. (D) The bags or containers holding the friable asbestos waste shall be placed below natural grade level. Where this is not possible or practical, provisions shall be made to ensure that the waste will not be subject to future exposure through erosion or weathering of the intermediate and/or final cover. (E) The bags or containers holding the friable asbestos waste shall be carefully unloaded and placed in the final disposal location. They shall be covered immediately with 12 inches of clean earthen material or three feet of solid waste containing no asbestos. Care shall be exercised in the application of the cover so that the bags or containers will not be ruptured. (F) A contingency plan in the event of accidental spills (ruptured bags or containers) shall be prepared prior to accepting friable asbestos wastes. The plan shall specify the person(s) responsible and the procedure for collection and disposal of the spilled material. (G) Asbestos waste which has been designated as a Class I waste may be accepted by a Type I municipal landfill provided the waste is handled in accordance with the provisions of this paragraph and the provisions of sec.325.137(b)(1)(E), (e), (f), and (g) of this title (relating to Disposal of Class I Wastes). (7) Nonfriable asbestos, may be accepted for disposal at any municipal solid waste landfill provided the wastes are placed on the active working face and covered in accordance with these regulations. Under no circumstances shall any material containing nonfriable asbestos be placed on any surface or roadway which is subject to vehicular traffic or disposed of by any other means by which the material could be crumbled into a friable state. (8) Empty containers which have been used for pesticides, herbicides, fungicides, or rodenticides may be disposed of in accordance with subparagraphs (A) and (B) of this paragraph. (A) These containers may be disposed of at a Type I, II, or III site provided: (i) the containers are triple-rinsed prior to receipt at the (ii) the containers are rendered unusable prior to or upon receipt at the site; and (iii) the containers are covered by the end of the same working day they are received. (B) Those containers for which triple-rinsing is not feasible or practical (paper bags, etc.) may be disposed of under provisions of paragraph (9) of this subsection or sec.325.137 of this title (relating to Disposal of Class I Wastes) as applicable. (C) Salvaging and/or scavenging of the containers shall not be allowed under any circumstances. (9) Municipal hazardous waste from a conditionally exempt small quantity generator (CESQG) may be accepted at a Type I municipal solid waste site without further approval provided the amount of waste does not exceed 220 pounds (100 kilograms) per month per generator, and provided the landfill owner/operator is willing to accept the waste. The conditions for CESQG status shall be defined by the Texas Water Commission. (c) A lead acid storage battery shall not be intentionally or knowingly offered by a generator for disposal at a municipal solid waste landfill, and/or shall not be intentionally or knowingly accepted for disposal at any municipal solid waste landfill permitted under this chapter. (1) Each battery improperly disposed of constitutes a separate violation. (2) A person who violates the provisions of this subsection is subject to the criminal and/or civil penalties found in the Texas Health and Safety Code, Chapter 361, as amended. (d) Effective April 1, 1992, used oil shall not be intentionally or knowingly offered by a generator for disposal at a municipal solid waste landfill either by itself or mixed with other solid waste, and/or shall not be intentionally or knowingly accepted for disposal at any municipal solid waste landfill. (1) It is an exception to this subsection if the mixing or commingling of used oil with solid waste that is to be disposed of in a landfill is incidental to, and the unavoidable result of, the mechanical shredding of motor vehicles, appliances, or other items of scrap, used, or obsolete metals. (2) A person who violates the provisions of this subsection is subject to the criminal and/or civil penalties found in the Texas Health and Safety Code, Chapter 371, as amended. (e) Used oil filters from internal combustion engines shall not be intentionally or knowingly accepted for disposal at landfills permitted under this chapter except as provided below. (1) Until prohibited in paragraphs (2) or (3) of this subsection, used oil filters shall not be intentionally or knowingly offered for disposal by a generator and/or be intentionally or knowingly accepted for landfill disposal on or after June 1, 1992, unless the filter: (A) has been crushed to less than 20% of its original volume to remove all free flowing used oil; or (B) processed by a method other than crushing to remove all free flowing oil. A filter is considered to have been processed if: (i) the filter has been separated into component parts and the free flowing used oil has been removed (the filter element must be pressed to remove free flowing used oil); (ii) the used filter element has been removed from a reusable or permanent housing and pressed to remove free flowing oil); or (iii) the housing is punctured and the filter is drained for at least 24 hours. (2) Used oil filters (to include filters which have been crushed and/or processed to remove free flowing used oil) shall not be intentionally or knowingly offered for landfill disposal by any non-household generator as specified following, and/or shall not be intentionally or knowingly accepted from such generator by a landfill permitted under this chapter as follows: (A) on or after August 1, 1992, any non-household generator located in a county with a population greater than 1 million; (B) on or after October 1, 1992, any non-household generator located in a county with a population greater than 200,000 which is located on or east of a line defined by Interstate Highways 37, 35, and 35W; (C) on or after December 1, 1992, any non-household generator located in a county with a population greater than 200,000; (D) on or after February 1, 1993, any non-household generator located in a county with a population greater than 100,000 which is located on or east of a line defined by Interstate Highways 37, 35, and 35W; (E) on or after April 1, 1993, any non-household generator located in a county with a population greater than 50,000 which is located on or east of a line defined by Interstate Highways 37, 35, and 35W; (F) on or after June 1, 1993, any non-household generator located in a county with a population greater than 100,000; (G) on or after August 1, 1993, any non-household generator located in a county with a population greater than 50,000; (H) on or after October 1, 1993, any non-household generator located in a county located on or east of a line defined by Interstate Highways 37, 35, and 35W; and (I) on or after December 1, 1993, any non-household generator located in any county of the state. (3) On or after April 1, 1994, used oil filters shall not be intentionally or knowingly offered for landfill disposal by any generator, and/or shall not be intentionally or knowingly accepted for landfill disposal by a landfill permitted under this chapter. (4) The bureau may extend, in 60-day increments, a time period specified in paragraph (2) (A)-(I) or in paragraph (3) of this subsection if the bureau finds that commercial waste services for collection and recycling of used oil filters are not available. The extension may be limited to any county or group of counties as the bureau finds necessary. (5) Violations of the requirements of this subsection shall be subject to the provisions of sec.325.222 of this title (relating to Enforcement Policy). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 3, 1992. TRD-9201953 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: February 27, 1992 Proposal publication date: November 12, 1991 For further information, please call: (512) 834-6680 Part II. Texas Department of Mental Health and Mental Retardation Chapter 401. System Administration Subchapter J. Licensure of Private Psychiatric Hospitals 25 TAC sec.sec.401.581-401.592 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts the repeal of sec.sec.404.581-404.592, concerning licensure of private psychiatric hospitals, without changes to the proposed text as published in the December 10, 1991, issue of the Texas Register (16 TexReg 7080). The repeal of the sections is adopted contemporaneously with the adoption of the new sections which replace them, also in this issue of the Texas Register. The purpose of the repeal is to allow the adoption of a new subchapter that establishes a number of safeguards for individuals receiving mental health services at private psychiatric hospitals in Texas. To the extent possible, the same standard of care and methods for protecting patient rights are established for all Texans receiving mental health services, without regard to location of service, i.e., whether receiving services at state hospitals or private psychiatric hospitals. No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Civil Statutes, Article 5547-202, sec.2.11, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 10, 1992. TRD-9202025 Anne K. Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: March 2, 1992 Proposal publication date: December 10, 1991 For further information, please call: (512) 465-4670 25 TAC sec.sec.401.581-401.593 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts new sec.sec.401.581-401.593, concerning licensure of private psychiatric hospitals. Sections 401.583 and 401.587-401.589 are adopted with changes to the proposed text as published in the December 10, 1991, issue of the Texas Register (16 TexReg 7080). Sections 401.581, 401.582, 401.584-401.586, and 401.590-401.593 are adopted without changes and will not be republished. Exhibit C, "Patient's Bill of Rights," would also be adopted with changes. The new sections are adopted contemporaneously with the adoption of the repeal of the subchapter they would replace, also known as Chapter 401, Subchapter J, governing licensure of private psychiatric hospitals. The new subchapter also supercedes the emergency adoption of the sections that took effect December 4, 1991 (16 TexReg 7055). The purpose of the new subchapter is to realize a number of safeguards for patients receiving services in private psychiatric hospitals licensed by TXMHMR, to more thoroughly articulate patients' rights, and to provide an easily accessible means by which patients can make complaints concerning their care and treatment. Section 401.583 is changed on adoption to add definitions of "patronage," "physician," "threat," and "unusual medications." Paragraph 401.587(c)(1) is revised to state that "All admissions, voluntary or involuntary, must be ordered and clinically justified by a physician." Language is revised in subsection (c)(1)(A)(i) and (ii) to state that within 72 hours prior to admission on a voluntary basis, an in-person medical evaluation must have been conducted by a physican and a psychiatric assessment must have been conducted by a qualified mental health professional as defined in the medical staff bylaws. Section 401.587(c)(1)(C) is clarified to indicate that no person shall be admitted to the hospital for emergency detention unless the admission is supported by a written statement by the physician who conducted the preliminary examination of the person and who has determined that the person meets the criteria for emergency detention outlined in the Texas Health and Safety Code. The conditions under which a person proposed for emergency detention may be accepted by the hospital are discussed. It is clarified that a person cannot be taken to a private psychiatric hospital for emergency detention unless the head of the facility agrees in advance to accept the individual. It is further clarified that the facility shall only accept such patients when a physician is available to immediately evaluate the person to determine whether the person meets the criteria for emergency detention outlined in the Texas Health and Safety Code, sec.573.022. Section 401.587(c)(2) is revised to use language that more directly addresses the issue of illegal remuneration. Section 401.587(c)(4) is clarified to indicate that without regard to whether a voluntary patient agrees to sign paperwork requesting discharge from services, the request will be documented and processed by staff. Information will be provided to the patient concerning the ensuing period of observation and evaluation. The form and format for the request for release and the information to be provided may take such form as TXMHMR may now or later prescribe. Subsection (c)(4)(B) of the same section is clarified to indicate after the patient requests release, the patient should not be detained unless the patient meets the commitment criteria and the hospital uses the additional time to facilitate the commitment process. Language is added to require the physician to execute a certificate of medical examination within 24 hours of the patient's request for discharge and to inform the patient and, as appropriate, the patient's parents, legal guardian, or conservator, of the intent to seek an involuntary commitment or to immediately discharge the patient. Section 401.587(c)(7) is revised to require each private psychiatric hospital to adopt policies and procedures establishing standards of care. These policies and procedures should reflect the standards of care established in the rules of the Texas Department of Mental Health and Mental Retardation or other professionally accepted standards of care. Section 401.588(b) is revised on adoption to clarify a number of procedural steps in the rights communication process. Language is added explaining the procedure to be followed in the event the patient refuses to sign the Patient's Bill of Rights. Language is also added clarifying that these rights must be explained to each patient within 24 hours of being admitted to the hospital to receive services. In addition, language is added requiring staff to later discuss rights with patients who, at the earliest stages of admission, appear incapable of fully comprehending their rights. Broad reference is made to requirements for compliance with TXMHMR rules governing rights of patients receiving mental health services, the application of which to private psychiatric hospital settings is proposed in this issue of the Texas Register in Chapter 404, Subchapter E. The rights in the proposed new subchapter are the same rights contained in Exhibit C of this new subchapter governing licensure of private psychiatric hospitals, with the additional articulation of rights concerning keeping and using personal possessions; the right to an opportunity for physical exercise and for going outdoors; the right to have grounds' privileges; the right to religious freedom without being forced to attend or engage in any religious activity; the right to have opportunities for suitable interactions with individuals of the opposite sex, with or without supervision, as appropriate for the individual; the right to a reasonable and timely consideration of a request for transfer to another room if another person in the room is unreasonably disturbing the individual; the right to receive appropriate treatment of physical ailments; and the right of each adult individual admitted to an inpatient program under the Health and Safety Code to have the hospital notify the individual's family of the patient's admission and discharge if the individual grants permission. Section 401.589(b) is revised to clarify that the department's agents will strive to be sensitive to therapeutic issues in interviewing patients. Exhibit C, "Patient's Bill of Rights," is revised on adoption as follows: The introductory paragraph is revised to clarify that each hospital is required to respect and provide for the rights of patients in order to maintain licensure and do business in the State of Texas. The section on "Your Right to Know Your Rights" is revised to ensure that a parents/guardian, conservator, or other person may receive a copy of the Patient's Bill of Rights. It is clarified that reporting to the Ethics Committee of the State of Texas is intended to apply to persons involuntarily committed. Basic right Number 4, concerning least restrictive environment, is revised to better reflect the language found in the Health and Safety Code. Basic right Number 6, concerning charges for services, is revised to require provision of information regarding estimated charges to patients and to articulate further information to which the patient should have access. Basic right Number 9 is further articulated to prohibit the use of subtle barriers to communication. Basic right Number 16 is revised to allow participation of any other person of the patient's choice in the development of the treatment plan. Language is also added requiring staff to document that a parents/guardian, conservator, or other person of the patient's choice has been contacted for such participation. Basic right Number 18, concerning consent to medication, is clarified to distinguish between patients at the hospital under voluntary admissions and involuntary commitments. Basic rights Numbers 18 and 19 are clarified to reflect exceptions to the right in the event of emergencies. Basic right Number 20 is revised to limit the provision of information about staff changes to professional staff only. The sections on "Special Rights of Voluntary Patients" and "Special Rights of Persons Apprehended for Emergency Detention" are revised to specifically reflect the criteria for commitment and emergency detention outlined in the Health and Safety Code. The potential penalty for causing or helping to cause the unjust commitment of a person to a mental hospital has been changed from two years in county jail to one year, reflecting a legislative amendment pursuant to the recodification of the statute in the Texas Health and Safety Code. A public hearing was held at TXMHMR Central Office in Austin, on December 16, 1991, to accept testimony concerning the proposed new subchapter. Twenty-two persons testified. Over the course of the public comment period, comments were received from a total of 135 respondents, including four corporate multihospital providers (Charter, HCA, Healthcare International, Psychiatric Institutes of America); six individual private psychiatric hospitals (Woods Psychiatric Institute, Southwest Texas Neuropsychiatric Institute, HCA Deer Park, Cambridge International, Villa Rosa Hospital, Saint David's Pavilion); seven advocacy and consumer organizations (Advocacy, Inc., Mental Health Association, TEXAMI, Texas Mental Health Consumers, National Association of Psychiatric Survivors, Committee for Truth in Psychiatry, Harris County Association for the Mentally Ill); nine professional associations (Texas Hospital Association, Texas Society for Psychiatric Physicians, Texas Psychological Association, Texas Nurses Association, Texas Association for Chemical Dependency, National Association of Social Workers, Psychological Association of San Antonio, Psychological Association of Greater West Texas, Dallas Psychological Association); 17 physicians in individual or group practice; 89 psychologists in individual or group practice; and 12 others, including individual consumers, the University of Texas Health Science Centers at San Antonio and Houston, Tropical Texas Mental Health and Mental Retardation Center, and Concho Valley Mental Health and Mental Retardation Center. Of these 135 commenters, almost all actively expressed support of the new subchapter. No commenters opposed the promulgation of the new subchapter, although 129 made recommendations for substantive changes in content. Several commenters posed a number of questions and made recommendations concerning issues not addressed in the rules as proposed. Concerning the treatment of children and adolescents, one commenter posed questions concerning the rights of minors under 16 admitted to private psychiatric hospitals, specifically the rights of young children. All questions focussed on whether the rights articulated in the Patient's Bill of Rights pertain to young children, e.g., should young children be provided access to a telephone to make complaints about services, should a seven-year-old report abuse or should the patient report it to parents, should the parents be provided access to records and staff to determine whether to report the alleged abuse. Two commenters called for language specifically emphasizing the rights of children and the protection of children and elderly persons against inappropriate admission, detention, and discharge. The department responds that just as with adults, minors are to be afforded all rights that are not explicitly limited by law, and as with adults, any additional limitation on rights should be clinically justified and regularly reviewed according to the timeframes articulated in the subchapter and in the Patient's Bill of Rights. This includes the right to make a complaint of abuse or neglect directly to authorities. For all minors under the age of 16, the parents, guardian, or conservator who admitted the minor has decisionmaking powers relative to the minor's care and services, and that person is the legal party responsible for giving or withholding informed consent, with the exception of research, in which case the assent of the minor is also required. Hospital staff and attending professionals do not assume in loco parentis rights. Given the clinical, ethical, and legal significance of the parents, guardian, or conservator acting on behalf of the minor child, it is essential that there are no communications barriers between the child and the person who admitted the child. Given that the Texas Health and Safety Code currently provides the right to be served in the least restrictive appropriate setting for the individual for all persons receiving mental health services, the further strengthening of protective provisions concerning least restrictive environment specifically for children and elderly persons will require additional legislative support and clarification. Concerning the provision of rights to persons receiving services at private psychiatric hospitals, two commenters noted that rights for mental health patients in Texas should not vary on the basis of location of services. The department agrees and has proposed the application of Chapter 404, Subchapter E (concerning rights of persons receiving mental health services) to private psychiatric hospitals in this issue of the Texas Register. Three commenters called for the rule to require staff training and periodic continuing education of staff concerning the intent and meaning of the new subchapter and the laws on which it is based. The department agrees that to facilitate compliance with the new subchapter, private psychiatric hospital staff will need to be given accurate information concerning the key provisions of the new subchapter, most of which center on patient rights. Staff training requirements concerning rights are contained in Chapter 404, Subchapter E (concerning rights of persons receiving mental health services), which is proposed for application to private psychiatric hospital settings in this issue of the Texas Register. Responsibility for providing such training rests with each licensee. The extent to which staff training is provided concerning rights and other aspects of the new subchapter will be reviewed during on-site enforcement visits and may be reflected in the number and types of complaints received concerning each hospital. Regarding enforcement, a commenter noted that it will be difficult to enforce the new subchapter because patients are perceived to have no credibility. Another commenter noted that if professionals had fully subscribed to their respective ethical codes, many recent abuses would not have occurred, and that abuses will continue if there is not adequate enforcement. One respondent expressed the hope that the department will devote sufficient staff and time to enforcing the proposed rules to test their effectiveness before adopting them. The department responds that to function effectively, professional staff charged with enforcing the regulations must do so without preconceived opinions concerning the credibility of patients, staff, family members, or others. The department agrees that enforcement is requisite if the new rules are to function effectively to protect patients. With specific reference to sanctions, three commenters called for the new subchapter to effect intermediate sanctions beyond revocation and suspension, such as civil monetary penalties following the due process procedure described in sec.401.591. The department responds that such sanctions may be desirable but such interim measures will require legislative action to ensure enforcement. A commenter noted that the new subchapter does not address continuity of care, particularly when patients are released to public mental health services. The department responds that this is an important issue that will be addressed when the new rule is next revised. The addition of such procedures to the rule at this time would not provide opportunity for public comment. A commenter noted that the new subchapter does not address the needs of chemically dependent patients. The department responds that the primary issues the rules seek to address are licensure and inspection process and rights of patients, which generally apply to both mentally ill and chemically dependent persons. The department is also proposing in this issue of the Texas Register the application of Chapter 404, Subchapter E (concerning rights of persons receiving mental health services) to private psychiatric hospitals. This rule contains a special section on rights of chemically dependent persons. A commenter called for the department to strengthen language concerning the duty to report rights violations and the mechanisms by which such complaints will be investigated. The department responds that the addition of this wholly new requirement at this stage in the rulemaking process would not provide opportunity for public comment concerning the concept. Two commenters suggested that the availability of a consumer affairs person who is independent of the hospital should be prominently advertised within the facility. The same commenters suggested that an ombudsman system be created with on-site inspection authority. The department responds that these suggestions appear to be good strategies for consumer and patient protection but the addition of these concepts as requirements requires additional consideration. A commenter suggested that provisions be added for patients to be informed of their rights at the earliest stages of exposure to the system. The department responds that patients are required to be given a copy of their rights as described in Exhibit C, Patient's Bill of Rights, prior to admission to the hospital, and to have these rights fully explained within 24 hours following admission. In addition, language has been added requiring staff to later discuss rights with patients who, at the earliest stages of admission, appear incapable of fully comprehending their rights. Two commenters suggested that the department consider extending the rules to govern ambulatory care policy in licensed facilities which provide such care. The department responds that legislative support will be required to extend the department's authority over this program element. A commenter called for the department to clarify the responsibilities of school counselors and other staff in regard to compensation for referrals. The department responds that the rule prohibits illegally securing patients or patronage and that this language applies to interactions involving school counselors and other staff. Two commenters requested that the department strengthen requirements for informed consent and the right to refuse treatment, particularly in regard to experimental and aversive treatment. As currently written, the rule, through the Patient Bill of Rights, provides that all patients must consent to treatment involving unusual or experimental drugs and aversive treatment. If this provision is followed, additional requirements are not necessary. A number of comments were received concerning general issues related to receiving services in private psychiatric hospitals. A commenter noted that the policy of denying records to patients within the hospital and following discharge should be ceased. The same commenter called for patients who are committed to be told who complained and why they are being committed at the time of commitment. The department responds that patients or their legal guardians or conservators are guaranteed access to medical records under Texas Civil Statutes, Article 4495b, and the Family Code, Chapter 14. It should be noted that this right commences with the creation of the medical record and information about the commitment procedure should be immediately available for inspection. A commenter called for the department to mandate stiff penalties for unjustifiably declaring persons dangerous or suicidal to encourage family members to seek commitment. The department responds that the Texas Health and Safety Code prohibits this and provides criminal penalties in the form of fines up to $5,000 and imprisonment up to one year. A commenter made numerous recommendations concerning procedures to be followed when electroconvulsive therapy (ECT) is administered, including a requirement for follow-along after six months and one year to assess memory loss and related difficulties. The department responds that the principle policy document concerning ECT procedures is Chapter 405, Subchapter E (concerning electroconvulsive therapy) and that the new subchapter requires private psychiatric hospitals to develop policies and procedures consistent with the principles and standards of care expressed in that document. The further development of policy related to ECT is outside the scope of this rule, but the commenter's recommendations will be referred for consideration when the ECT policy is next updated. A commenter made several observations concerning the commitment process generally, including suggestions concerning criteria for commitment and instructions to judges. The department notes that many of the commenter's suggestions are already addressed in the Texas Health and Safety Code (Mental Health Code, Article 5547-51), which provides that in hearings for court-ordered extended mental health services, there must be clear and convincing evidence that the individual meets the criteria for commitment. Clear and convincing evidence must include "expert testimony and evidence of either a recent overt act or a continuing pattern of behavior in either case tending to confirm the likelihood of serious harm to the person or others or the person's distress and deterioration of ability to function." The modification of these statutory provisions would require legislative support and is outside the scope of the new subchapter. A commenter noted that constitutional rights should be unbreachable except where there is risk of imminent harm to self or others. The department responds that risk of imminent harm to self or others is the general criterion applied when most rights, including constitutional rights, are limited. Laws limiting the rights of mentally ill persons are diverse and range from the Texas Health and Safety Code to the Election Code. A commenter recommended that the department disallow advertising on television or radio when hospitals utilize commitment or forced treatment. The department responds that such action is outside the scope of the department's authority. A commenter recommended that all patients be allowed an absolute right to refuse medication. The department responds that at this time in Texas, only voluntary patients have an absolute right to refuse medication. However, under the new subchapter, when involuntarily committed patients refuse medication, the hospital is required to institute a process involving psychiatric consultation and corroboration of the need for medication. This process should be consistent with the standards set out by TXMHMR, which are currently contained in Chapter 405, Subchapter FF (concerning consent to treatment with psychoactive medication) , or with other generally accepted professional standards that provide due process review of patients' objections to medication. A commenter suggested that people have a "right to die" and that forced treatment and commitments should be stopped and replaced by non-threatening services for suicidal patients, including hospitalization with choice. The department responds that this is an issue of magnitude that is beyond the scope of the rule. The department agrees that whenever possible, non-threatening services are more therapeutic and that voluntary admission is preferable to commitment. A commenter requested that the department develop a compensation fund to relieve those who have been victimized by mental health services. The department responds that this is outside the scope of the new subchapter. Recourse for individuals who have been personally injured while receiving mental health services includes civil litigation and, as appropriate, criminal enforcement. Three commenters submitted remarks concerning all private psychiatric inpatient services in Texas. One commenter submitted a number of policy statements by a professional organization for the department's consideration. These statements included requiring licensed or certified professionals and state agencies to report rights violations to the appropriate state licensing authority, with failure to do so resulting in sanctions or disciplinary action. The department responds that the policy statement is consistent with the development of a memorandum of understanding between 17 state human services agencies which addresses the same issues concerning coordination of reporting of allegations. The memorandum does not address sanctions and disciplinary action for failure to comply, which, if available, are in the purview of each signatory agency. The commenter's policy statement included several other provisions either in support of the policy expressed in the new subchapter, i.e., the right of state agencies to conduct on-site random inspections to ensure compliance with the Patient's Bill of Rights. The policy statement also proposed a joint statewide educational program by TXMHMR, TCADA, and the Texas Board of Medical Examiners to inform the public about how to complain about private psychiatric care providers. The department responds that it is coordinating its public information efforts with other state agencies. The same commenter included a policy statement that psychiatric facilities shall be subject to regulation and enforcement by not more than one agency and that state agencies which license psychiatric facilities shall have authority to conduct on-site inspections. The department responds that the current psychiatric hospital licensure rule was developed to address the perceived limitation, in part, that TXMHMR as licensing authority could not inspect the premises of the hospitals it licenses if they were inspected by the Texas Department of Health for purposes of Medicare certification. For this reason, the policy statement suggested by the commenter is not consistent with TXMHMR policy as expressed in the new subchapter. Another commenter noted that the issues that prompted the development of the new rules should apply to general psychiatric hospital units licensed by the Texas Department of Health (TDH) and to residential facilities licensed through Texas Commission on Alcohol and Drug Abuse (TCADA). The department responds that TDH has adopted the principle provisions of the department's rules on an emergency basis effective December 31, 1991. TXMHMR, TDH, TCADA, and 14 other state agencies are in the process of negotiating an interagency memorandum of understanding that would provide an integrated complaint resolution process. Also concerning the issue of private psychiatric inpatient services statewide, a commenter noted that the regulations should apply to "non-profit" facilities that have psychiatric units that admit patients. The department responds that the intent of the commenter's remarks is not clear. If the commenter is referring to psychiatric units licensed by the Texas Department of Health (TDH), it should be noted that TDH has adopted emergency regulations very similar to those of TXMHMR, including the Patient Bill of Rights, effective December 31, 1991. Concerning sec.401.583, a commenter suggested that a definition of "patronage" would be helpful, and a definition has been added. A commenter also requested that "physician" be defined. Other commenters suggested that the term "threat," as it is used in sec.401.587 (concerning patient care requirements) be defined. A commenter requested that "unusual medications" be defined. The department has defined the terms. Concerning the same section, a commenter requested that the department indicate in its definition of "private psychiatric hospital" that language be added to exclude psychiatric units of medical-surgical hospitals licensed by the Texas Department of Health. The department responds that this distinction is unnecessary given the clear statutory distinction between the authority of TXMHMR and the Texas Department of Health. Also concerning the definition of "private psychiatric hospital," a commenter expressed confusion concerning the provision that services that are part of a private psychiatric facility but that are not licensed by the department, e.g., outpatient services, are considered during licensure only to the extent that they affect the stated resources for the hospital. The department responds that the provision is stated as intended and reflects the department's concern that levels of resources that a private psychiatric hospital may designate as available for inpatient care in the licensure process may in fact be routinely deployed in the provision of services the department does not license. This would affect the real resources available for inpatient care and the hospital's ability to meet compliance standards. Also concerning definitions, a commenter requested that reference to federal laws be deleted from "statutory review," which is defined to be review to ascertain compliance with state and federal laws and the provisions of the new subchapter. The department responds that several provisions of the new subchapter related to rights are predicated on broad federal laws such as the Protection and Advocacy Act, the Fair Labor Standards Act, and the United States Constitution, the specific requirements of which are too detailed for inclusion in the new rules but which are pertinent in the review of compliance with patient rights. Concerning sec.401.587(b)(1), a commenter expressed concern that requiring private psychiatric hospitals to comply with the inpatient standards of the Accreditation Manual for Hospitals of the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) would require hospitals to provide services that are beyond the scope of private psychiatric hospitals. Another commenter suggested that because the Health and Safety Code, sec.577.001 does not require compliance with JCAHO standards, the department should delete this requirement. The department responds that its authority as licensing agency to designate a standard of care is clear. The Texas Health and Safety Code, sec.571.006, authorizes the department to adopt such rules "as may be necessary for proper and efficient treatment of the mentally ill." Furthermore, of 87 private psychiatric hospitals in Texas, all but three are accredited by the Joint Commission on Accreditation of Health Organizations, a number which includes all of the facilities affiliated with the commenter questioning the applicability of the JCAHO standards to the scope of private psychiatric services. Three additional facilities which are not accredited are in substantial compliance with the standards. This would suggest that the standards are not inappropriate to a private psychiatric inpatient hospital setting. Concerning sec.401.587(b)(1)(A), a commenter requested clarification of what constitutes "special treatment procedures." The department responds that the term is defined in sec.401.583 (concerning definitions). With regard to sec.401.587(c)(1), two commenters requested that language be revised to read, "All admissions, voluntary or involuntary, and treatment must be ordered and clinically justified by a physician." The department responds that it has revised the language to require that admissions be ordered and clinically justified by a physician. Language has been added verifying that treatment planning and implementation are the responsibility of all participating professionals; however, the individual's treating physician shall have final authority for care and treatment. Concerning the same paragraph, a commenter recommended that the department needs to provide guidelines by which justification for admission or detention of a patient is well-articulated, not just "a rationale." The department responds that a clinical justification is not simply "a rationale," and that further guidelines are not necessary for this to be understood. A commenter requested clarification of whether the requirement for a "face-to- face" evaluation by a physician in sec.401.587(c)(1) applied to both voluntary and involuntary patients. The department responds that the requirement applies to both voluntary and involuntary patients, with specific criteria for the examination outlined in the appropriate subsections of sec.401.587(c)(1). Concerning sec.401.587(c)(1)(A), a commenter suggested that admission be defined as the precise time at which the physician orders a patient into the hospital for a period of 24 hours or longer. The department responds that the definition of admission may be the subject of legislation and that it is not necessary to define the term for the provisions in this subchapter to be understood. A commenter requested clarification as to whether residents can be considered attending physicians and admitting physicians. The same commenter questioned whether an evaluation by a physician at the local community mental health and mental retardation center (CMHMRC) will meet the requirements of the new subchapter. The department responds that under rules as adopted, "physician" is defined to include residents. Medical examination and psychiatric assessment by a physician at the local CMHMRC are acceptable. A large number of commenters provided a variety of suggestions concerning who should be permitted to admit patients to hospitals, how long prior to or following admission the physician has to conduct an evaluation, what the evaluation should include, and what the terms "treating physician" and "admitting physician" mean. Three corporate providers, four independent providers, nine professional associations, three advocacy and consumer organizations, 10 physicians, 87 psychologists, and eight others submitted comments concerning the concept of "admitting physician" and related issues in sec.401.587(c). An advocacy group, members of four professional organizations, and a psychologist supported admission by physicians on a number of grounds, paraphrased as follows: Physicians are trained to diagnose and treat biologically based serious medical and psychiatric conditions; their specific hospital-based education provides broader skills in differential diagnosis of organic and psychological problems. Training of physicians and psychologists is not equivalent. Patients do not generally belong in hospitals unless severely disturbed by complex problems that require medical evaluation and input. The Health and Safety Code only supports physicians as admitting professionals. Allowing non-physicians to admit patients with serious biologically-based medical illnesses to hospitals will not solve the complex problems of corporate practice of medicine. The public, mental health consumers, and advocates have not endorsed the questionable practice of allowing non-physicians to practice independently in hospitals. General medical/surgical hospitals do not permit non-physicians to admit patients and practice independently without physician supervision. Not all psychologists agree that psychologists should be allowed to admit. Registered nurses can only accept orders from physicians. Almost all psychologists who commented objected to the language concerning admitting physicians on a number of grounds, paraphrased as follows: Psychologists are competent to evaluate the need for inpatient care. A psychologist's evaluation of the patient's psychological state is likely to be far more important in determining the necessity for admission or readiness for discharge than that of a physician who lacks both comparable psychological assessment expertise and personal knowledge of the patient. It has been beneficial to psychologists and patients when psychologists admit because the patient has the ability to choose the provider who best meets the patient's needs and the psychologist can follow the patient more closely than the physician, allowing the physician to focus on the patient's medical and pharmacological needs. Three Texas hospitals grant psychologists full admission and discharge privileges, seven others have psychologists on the medical staff, and six allow them to write orders (excluding medication orders). Public policy should not be changed to restrict the authority of psychologists without their input; to do so is to endorse the position of "rivals" who contend that only physicians have authority in hospitals. Other licensing agencies have not adopted physician-only preadmission requirements. Restricting the rights of hospitals to grant admitting privileges to psychologists would neither safeguard patients nor correct identified abuses; existing treatment relationships would be disrupted and freedom of choice for patients would be restricted for no valid purpose. The reinforcement of a psychiatric monopoly, under which inappropriate practices occurred, does not increase public protection; allowing a healthy competition in a system and freedom of choice by consumers does provide a benefit. To require a patient screened by a psychologist to be re-screened by a physician is an extra expense and an unnecessary waste of time for the patient. Sometimes physicians are not available to evaluate patients on an immediate basis. No abuses of patients under the care of admitting psychologists have been identified, and complaints about psychologists in hospital practice in general have been minimal. It is inappropriate to restrict the authority of the most highly trained mental health specialist in the state and at the same time to affirm the authority of non-psychiatric physicians with minimal mental health training or experience for the evaluation of mental health needs. To not include psychologists is to clash with existing statutes in law, with the ruling by the attorney general. Three commenters suggested that a number of types of mental health professionals, including psychologists, are qualified to perform admission intake assessments. One commenter noted the importance of a multidisciplinary approach to evaluation for admission, and specifically mentioned collaborative efforts by physicians and social workers. One commenter noted that State Board of Insurance rules relating to people with chemical dependency provided a two- tiered intake/physician evaluation protocol designed to control costs related to the treatment of chemical dependency. Two commenters suggested that "turf battles" should cease and that attention should be placed on rights, privileges, and abuses of consumers in private psychiatric hospitals. In considering the commentary, the department actively sought to dissociate itself from the highly vocal debate among professionals as to who is qualified by training and supported by law to admit patients to private psychiatric hospitals. Instead, it sought to identify those elements of the admission process that are integral to adequate patient care and to ensure that those elements are present without regard to who technically admits the patient to services. In this regard, it is the department's position, both as mental health authority and as licensing agency for private psychiatric hospitals, that a medical examination by a physician is necessary to identify any underlying conditions that may present as psychiatric symptoms and to identify any underlying medical conditions that may require immediate treatment or affect the treatment of psychiatric illness. Treatment that is based on a psychiatric assessment without benefit of a medical examination poses a significant risk to the patient and constitutes a significant risk management issue to healthcare providers and mental health professionals. In emphasizing the need for a physician evaluation, it is not the intent of the department to diminish or discourage the important contributions that other licensed or certified mental health professionals make to quality patient care. Rather, the department supports and encourages a multidisciplinary approach to patient intake and admission. Four respondents requested that the time period during which the patient could be evaluated by a physician who is familiar with the patient should be extended five days or more. Four commenters requested that the department provide for post-admission physician evaluation to accommodate psychiatric emergencies. Suggestions ranged from no later than four hours following admission to no later than 24 hours following admission. With regard to the timing of the medical examination and psychiatric assessment, it is the department's position that the evaluation must occur prior to admission, both to ensure that admission is medically appropriate and to enable the timely prescription of necessary medication, which may only be administered by registered nurses on the order of a physician. The time limit within which the patient must have been examined by the physician has been extended from 24 hours to 72 hours in all cases, and the distinction between time limits during which a "treating physician" (a physician with whom the patient has a longstanding relationship) and "admitting physician" (a physician privileged and credentialed by the private psychiatric hospital) must have seen the patient has been deleted. The qualifying terms "treating" and "admitting" have also been deleted. By deleting these distinguishing terms, the department intends to facilitate patient access to services while ensuring that the basic components necessary for medical authorization for inpatient treatment to occur. One commenter questioned what steps a hospital can take if a prospective patient becomes violent while waiting for a physician to come to the hospital to admit the patient. The same commenter questioned how the rules would be affected by federal patient transfer statutes. Another commenter asked for clarification that the physician making the evaluation could be an emergency room physician or a physician of another specialty who knows the patient if a psychiatrist is not immediately available. By providing that any physician can perform the medical examination and psychiatric assessment prior to admission, many of the logistical difficulties posed by rules as proposed, i.e., necessity for immediate evaluation of potentially violent patient, potential conflict with patient transfer statutes, are ameliorated because the private psychiatric hospital can refer patients to emergency room services of local general hospitals or to any qualified physician to obtain immediate evaluations prior to admission. A commenter suggested that the department prohibit the hospital from making a charge to the patient (or third party payor) if the admitting psychiatrist determines by direct evaluation that the patient did not need hospitalization and discharges the patient. The department responds that such a provision is outside the scope of the rule. A commenter requested clarification around the transfer of responsibility between admitting and attending physicians. The department responds that the rule has been revised on adoption to make such considerations irrelevant at this time. One commenter suggested that the rules also require that a physician's services be available to ensure compliance with the rule. Another commenter emphasized that the preadmission evaluation should be a psychiatric evaluation. The department responds that it is not necessary to add requirements for this purpose under rules as proposed or adopted. The necessity for a medical examination and psychiatric assessment by a physician prior to admission makes such a requirement implicit without prescribing how the requirement will be met. Concerning sec.401.587(c)(1)(A), two commenters noted that as proposed, the rule would require prior to admission a written statement in the patient record by the admitting physician in addition to the statement by the physician who conducted a preliminary examination to determine whether the individual meets Health and Safety Code criteria for emergency detention. The department responds that language has been revised to clarify that only one preliminary examination is required prior to admission. Two commenters requested that language be added allowing the admitting physician from 12-24 hours to perform the preliminary examination to determine whether the individual meets Health and Safety Code criteria for emergency detention. The department responds that this is not consistent with Health and Safety Code provisions requiring a preliminary evaluation prior to admission. A commenter requested clarification as to whether the face to face evaluation applies to only voluntary patients. The department responds that every patient presenting for services should have been seen by a physician within 72 hours of presenting for admission to services. In the case of persons presenting under emergency detention provisions of the Health and Safety Act, the preliminary examination may have been performed prior to the patient's arrival at the hospital or it may be required to be performed by a physician at the hospital prior to admission. A commenter requested clarifying language that hospitals do not have to accept custody of patients from peace officers until an evaluation can be completed to determine whether the patient meets the Health and Safety Code criteria for admission. The department responds that under the Health and Safety Code, sec.573.022, a person apprehended for emergency detention must be given a preliminary examination by a physician to determine whether the person meets the criteria for emergency detention. The code provides that private psychiatric hospitals do not have to accept individuals for evaluation for emergency detention. Language has been clarified to this effect. Two commenters asked for clarification of the requirement in the rule that subsequent submission of an application for voluntary admission does not negate the requirement for an evaluation for purposes of admission under emergency detention. The department responds that the purpose of this provision is to ensure that individuals are not coerced into voluntary admission through threat of admission under emergency detention. If a person presents for emergency detention who has not otherwise received a preliminary examination by a physician who certifies that the patient meets the criteria for admission for emergency detention under the Health and Safety Code, then the preliminary examination to determine whether the individual should be admitted for emergency detention must be completed prior to accepting an application for voluntary services. The purpose that is served is the prevention of voluntary admissions under coercive influences. If an individual is found not to meet the criteria for emergency detention after having been apprehended and taken to the hospital under this authority, that person's decision to seek voluntary admission can be expected to occur without sense of coercion. Language has been revised to clarify the misunderstanding. With regard to sec.401.587(c)(2), relating to remuneration, a commenter suggested that the rule is broader than the provisions of the Health and Safety Code and that if the department believes that the provisions of the Health and Safety Code are not adequate to address its concerns, it should seek a statutory amendment. The department responds that until such time as a statutory amendment is effected by the state legislature, it will rely on its statutory authority to adopt rules that are necessary for proper care and treatment of mentally ill patients as established in the Health and Safety Code, sec.571.006. Concerning the same paragraph, a commenter suggested that language be modified to clearly indicate that marketing of hospital services is different from the illegal securing of patients or patronage. The same commenter suggested a definition of "patronage," which has been added to the definitions section of the adopted new subchapter. Also concerning sec.401.587(c)(2), a commenter suggested language that more directly addresses the issue of illegal remuneration. The department agrees with the recommendation and has clarified language on adoption as follows: "Facilities licensed by TXMHMR shall not employ, contract with, refer to, or accept referrals from any person who offers or accepts remuneration, in kind gifts or services, or other compensation of any kind for illegally securing patients or patronage, including, but not limited to, securing patients or patronage in violation of the Health and Safety Code, Chapter 1561, Subchapter I, sec.161.091" The commenter also recommended adding provisions concerning payments made to entities from which the provider accepts referrals and informing patients of those financial relationships. The department responds that the purpose of the section is to prohibit payments to entities for referrals. Another commenter noted that illegal remuneration should not be an issue for hospitals if the licensees honor the two rudiments of professional ethics, "informed consent", and the avoidance of conflicts of interest. The commenter suggested adding a definition of informed consent. The department agrees that regard for ethics should prohibit the illegal securing of patients or patronage. Although used in the Patient's Bill of Rights, the term "informed consent" is not used in the language of the rule, and therefore does not need to be defined. It is defined as relevant to particular treatments in rules of the Texas Department of Mental Health and Mental Retardation, which are required to be considered by private psychiatric hospitals in developing their own policies and procedures for such treatments. Concerning sec.401.587(c)(3), a commenter requested clarification concerning the effect of the requirement to provide patients with clear, itemized bills on the use of the UB-82 billing form. The commenter stated that healthcare providers are required to use the format prescribed to bill third-party payors. The department responds that format requirements for billing third party providers are irrelevant to the patient's right to a clear and itemized bill for services. A commenter suggested that a patient requesting release from a private psychiatric hospital as outlined in sec.401.587(c)(1)(C)(4) be informed that pursuant to the law, the patient will be observed and evaluated for a period of up to 24 hours to determine the clinical appropriateness of seeking an involuntary commitment to services. The department agrees, and language has been added. With reference to sec.401.587(c)(4)(A), two commenters noted that when voluntary patients request to be discharged from the hospital, the physician should be able to make a determination as to whether the patient meets the Health and Safety Code criteria for mental health commitment without retaining the individual in the hospital for the full 96 hours. Another commenter requested clarification concerning what happens following the examination. The department has modified language to require the physician to execute a certificate of medical examination within 24 hours of the patient's request for discharge and to inform the patient and, as appropriate, the patient's parents, guardian, or conservator of the intent to seek an involuntary commitment, or to immediately discharge the patient. The patient should not be detained unless the patient meets the commitment criteria and the hospital uses the additional time to facilitate the commitment process. A commenter questioned whether a resident can be the "patient's physician." (PIA) Another commenter questioned whether the physician performing the evaluation must be the attending physician or whether a designee can perform the evaluation in the physician's absence. The department responds that a resident meets the subchapter's definition of physician and that the attending physician can designate another physician to perform the evaluation. Concerning sec.401.587(c)(4)(B), two commenters questioned the requirement that oral requests be processed in the same fashion as written requests. Another commenter called for a copy of the signed request for discharge to be filed in the patient's record, including documentation that the patient was informed that during the 24-hour period the patient will be observed for symptoms of imminent risk of harm to self or others, and that if substantiated, will be the subject of a request for court-ordered commitment. Section 401.587(c)(4)(B) is clarified to indicate that without regard to whether a voluntary patient agrees to sign paperwork requesting discharge from services, the request will be documented and processed by staff. Language has been added to respond to the commenter's request concerning informing the patient that following the request for discharge, a period of observation and evaluation lasting up to 24 hours will follow. A commenter requested that the department make clear that a physician and hospital that allow a patient to leave the facility after the 24 hours are eligible for the immunity provisions of the Health and Safety Code, sec.571.019 and are not required to detain the patient for the full 96 hours in the event of a change in the patient's condition. The department responds that the Health and Safety Code does not require a voluntary patient to be held for the full 96 hours following request for discharge. The time limit is permissive, not obligatory, and constitutes a maximum, not an inflexible requirement. One commenter stated that it places an unreasonable burden on healthcare providers to determine what constitutes an actionable oral request. The department responds that an oral request for discharge should be processed in exactly the same fashion as a written request, and this is a reasonable requirement. A commenter requested clarifying language around the intent of holding a patient more than 24 hours following a request for discharge. The department responds that revisions on adoption make such clarification. A commenter questioned the ability of the court to act within 24 hours on a request that a patient be changed from voluntary to involuntary status. The department responds that the rule does not require the court to act within this time frame, but that the physician must evaluate the individual to determine whether the provisions of the Health and Safety Code for involuntary commitment are met, and action to process commitment must commence within the 24-hour time frame. With reference to sec.401.587(c)(5), four commenters requested that the department define "threat" to differentiate it from giving patients clinically and legally appropriate information. The department responds that a definition of "threat" has been added in sec.401.583. Concerning sec.401.587(c)(7), three commenters recommended that either reference to department rules be deleted and that JCAHO standards be referenced or that hospitals be given the option of complying with either department rules, JCAHO standards, or other appropriate standards. The department responds that on the basis of testimony given at legislative hearings statewide in recent months, it is clear that requiring compliance with JCAHO standards does not ensure adequate protection of patients or provide a minimally acceptable standard of care. Another commenter questioned the feasibility of applying detailed rules governing public facilities to the private sector. The department responds that it is not the department's intent that hospitals comply with the rules verbatim, but that they use the rules as the basis for developing policies and procedures reflecting an equivalent standard of care. The requirement provides considerable latitude without compromising certain key elements of patient care that should be integral in services to all mental health patients in Texas, not just those served in public facilities. This standard of care would not extend to include reporting requirements involving TXMHMR Central Office, nor would it extend to all details that are a function of the structure and organization of a state facility and not a function of ensuring optimum patient care. In cases in which the standard utilized by a private psychiatric hospital is qualitatively equivalent or higher or demonstrably widely accepted in current, professionally accepted biomedical literature, the hospital's standard, although different, would be acceptable. Language has been revised to clarify intent. Two commenters strongly supported the application of state facility rules to the private sector. One commenter suggested that rules may limit too stringently the right of patients to refuse medications in a private psychiatric setting. The department responds that the right to refuse medication is determined by state law that applies equally to patients served in the public and private sectors. The requirement for private psychiatric hospitals to develop policies and procedures consistent with the department's policy governing informed consent to treatment with psychoactive medications, or another professionally recognized and generally accepted standard covering due process for patients objecting to medication, in fact provides patients who are involuntarily committed with more protection that would typically be available under law. The rules require hospitals to provide due process, including medical consultation and corroboration, to involuntarily committed patients who object to medication. Concerning the same section, one commenter posed a series of detailed questions about the department's rules on electroconvulsive (ECT) therapy, restraint and seclusion, and prescribing of medications. Three other commenters made detailed comments concerning the department's ECT policy. For the purposes of effecting the adoption of rules governing licensure of private psychiatric hospitals in timely fashion, adoption cannot be delayed for purposes of reopening the ECT rule for further revision prior to adoption of the licensure rule. All comments will be carefully considered when the ECT rule is reexamined as part of the department's two-year sunset review process in January 1994. Commenters are referred to the previous response concerning the general applicability of departmental rules to private psychiatric hospitals, which provides latitude for commenters to address the specific issues noted in their correspondence. One commenter called for the addition of a new paragraph (8) to the subsection, which would state "All inpatient treatment shall be under the direct authority, supervision, and responsibility of a physician." The department refers the commenter to sec.401.587(c)(1) as revised on adoption. With reference to sec.401.588, a commenter expressed general disappointment with the Patient's Bill of Rights and called for the department to apply its rules governing rights of patients receiving mental health services to private psychiatric hospital settings. The department agrees that with few exceptions, the rights afforded Texans receiving mental health services should be the same without regard to the location of services. As previously noted, the department is proposing the application of rules governing mental health rights to private psychiatric hospitals in this issue of the Texas Register. A commenter suggested more detailed information concerning the rights process at private psychiatric hospitals, such as requiring information about what the patient/family, guardian/other can expect during the patient's course of treatment; requiring a discussion of the role of family/guardian/others in the patient's treatment process; explaining the hospital and clinicians' financial policies, types of financial arrangements, and filing arrangements; available options if the patient's insurance benefits are exhausted or denied; a detailed bill for services rendered, upon request, as well as the name of the individual at the facility to contact for billing questions; and a copy of the Patient's Bill of Rights. Another commenter called for the department to include information authorizing notification of the patient's family or another significant person, if the patient gives permission, upon admission and discharge, and inclusion in the treatment planning and discharge planning processes, with the patient's permission. The department responds that all of these suggestions are helpful and general provisions have been more fully addresssed in the adopted Patient's Bill of Rights. A commenter noted that the department's requirement to provide a copy of the Bill of Rights prior to admission is more stringent than the Health and Safety Code, which requires that such information be conveyed within 24 hours following admission. The department responds that many of the abuses reported in legislative hearings could have been avoided if prospective patients had access to their rights prior to admission. The department, acting on the authority established in the Texas Health and Safety Code sec.571.006, which states that TXMHMR may make rules necessary to ensure the proper care and treatment of mentally ill persons, has therefore developed regulations to address this situation. The same commenter requested clarification of the procedure to be followed if the patient will not sign or is unable to sign the duplicate copy of the Patient's Bill of Rights. The department has provided additional language in the rule to address this situation. A commenter requested that sec.401.588(c) be revised to be less absolute in its requirement that patients be protected from abuse and neglect. The commenter is referred to the discussion concerning overqualification of patient rights in subsequent sections of the preamble that respond to comments on the Patient's Bill of Rights. Regarding sec.401.589(a), a commenter stated the belief that TXMHMR lacks statutory basis for such broad inspection authority. The commenter, the Texas Hospital Association, noted that it has worked and will continue to work with the department to effect necessary legislative changes. The commenter called for a memorandum of understanding among affected state agencies to ensure that unnecessary and duplicative inspections are avoided. The department responds that it appreciates the support of the Texas Hospital Association but disagrees that it does not have the requisite authority to conduct inspections as described in the new subchapter. An attorney general's opinion issued January 31, 1992 affirmed that the department has the authority to conduct such inspections. Additional clarification of this authority is anticipated in the form of legislation. A memorandum of understanding is currently being negotiated between TXMHMR, TDH, and TCADA and 14 other agencies to clarify inspection authority in all facilities providing private psychiatric hospital services in Texas. Another commenter called for the inspection process of private facilities to be modeled after the continuous quality improvement (CQI) review team process for inspecting state hospitals in Texas. The commenter noted that the CQI team includes agency staff as well as consumers, family members, and other professionals. The department responds that the concept has merit and nothing in the subchapter would preclude such an approach at a later time, after department staff have had an opportunity to address the many immediate and critical problems that have been the subject of legislative hearings. It should be noted that a continuous quality improvement review, which is essentially an internal quality control mechanism, differs substantially from the regulatory review process conducted pursuant to law. Concerning sec.401.589(b), two commenters called for the department to revise language to indicate that patients may only be questioned with the permission of the attending physician. Two commenters suggested that rather than requesting physician permission, obtaining informed consent to be interviewed from patients might be more appropriate. Another commenter requested that the department ensure that patient confidentiality rights are respected during the investigation of complaints and during subsequent actions based on the complaints. A commenter questioned what would happen in cases in which the patient or patient's family refused to sign a consent to release information in the medical record. All commenters are referred to the Texas Health and Safety Code, sec.611.004(b) (Texas Civil Statutes, Article 5561h), which provides that exceptions to the privilege of confidentiality allow disclosure of confidential information to qualified personnel for the purpose of management audits, program evaluations, or research. The law also states that such personnel may not identify, directly or indirectly, a patient/client in any report of such research, audit, or evaluation, or otherwise disclose identities in any manner. The consent of the patient or the legally authorized guardian is not required. The department assures the commenter that staff and administrators involved in the investigation of complaints are qualified mental health professionals who are knowledgeable of confidentiality laws and sensitive to the needs of patients for confidentiality. Concerning the same subsection, two commenters suggested that the language authorizing agents of the department to take such action as "deemed" necessary to ascertain compliance should be revised to delete the term "deemed." One commenter suggested that "deemed" be replaced with "reasonably." One commenter suggested that the use of the term "deems" is an attempt to use "bootstrapped authority" to delete the requirement that documents to be examined and transcribed be relevant to the investigation. The department responds that "deems" is a term used to denote judgment and that in any situation involving investigation of compliance issues, judgment must be exercised. The use of the term or the deletion of the term in no way materially affects behavior, the authority of the department, or the requirements of law. Also concerning the same subsection, a commenter suggested that language in the rule needs to be reconciled with statutory requirements that state that entry must be at a "reasonable time." The commenter is referred to the response for the previous comment. The same commenter asked for clarification concerning whether the department intends the term "transcription" to mean that the department has the right to photocopy documents. The commenter asserts that this right is not provided in law. The department refers the commenter to the Texas Health and Safety Code, sec.577.013. Further, the commenter is referred to the Texas Health and Safety Code, sec.577.015-577.015, which describes the agency's subpoena powers and ability to collect evidence in the discharge of its responsibilities as the licensing agency. With regard to subsection (c) of the same section, a commenter suggested that injunctive relief to restrain the operation of a licensed hospital is in direct conflict with the due process provisions of the rule contained in sec.401.591. The department responds that the authority to restrain the hospital's operation is provided for in the Health and Safety Code, sec.577.016 (the Mental Health Code, Article 5547-93), which authorizes the department to suspend the license of a hospital if there is "immediate threat to health or safety of patients or employees of a private mental hospital." This does not deny the hospital due process as outlined in sec.401.591. Regarding the same section, a commenter suggested that hospitals receive feedback concerning the outcome of investigations or inspections. The department responds that feedback is an integral part of the review process. Concerning sec.401.590(d), a commenter recommended that protections for employees who report abuse and neglect need to be specified and strengthened. The commenter suggested that immediate suspension or revocation of a hospital's license might be an appropriate penalty if an employee who reported abuse or neglect was disciplined or retaliated against. The department responds that this is an important area in which legislative support is necessary to enable decisive action. Under current law, the department has little authority to intervene in personnel decisions of private psychiatric hospitals. Concerning subsection (f) of the same section, a commenter asked for clarification concerning what constitutes "full disclosure" of hospital ownership and control. The department responds that "full disclosure" means, for a partnership, disclosure of all partners; for a closely held corporation, disclosure of all shareholders; for a corporation that is not closely held, disclosure of all directors and shareholders holding more than 5.0% of the shares. With reference to subsection (g) of the same section, a commenter suggested that every licensee should be required to quantify types of diagnoses of patients served and the length of stay for each diagnosis. The department responds that it is not necessary to require hospitals to generate special reports concerning these matters as they are closely reviewed during on-site visits in which admission and discharge records are routinely reviewed and diagnoses and length of stay are routinely questioned. A commenter recommended that there be a requirement for the annual update of Exhibit B data in order to maintain an up-to-date database for reviewing each hospital. The department responds that such a requirement is not necessary since information on the application that demonstrates compliance with the required standards is routinely reviewed during site visits. Rules require notification of the licensing agency of any change in ownership, control, or location. The commenter also requested that consideration be given to notifying the mental health authority where the private psychiatric hospital is located of any changes, particularly if the MHA has a contract with the hospital. The department responds that MHAs that contract with private psychiatric hospitals can make notification of these and other changes in the application for licensure a condition of the contractual relationship. A number of comments were received concerning Exhibit C, the Patient's Bill of Rights. Two commenters suggested changes to the wording of the introduction of the document, as follows, "This hospital is required to respect and provide for your rights in order to maintain its licensure and do business in this state." The department responds that the language has been revised as requested. A commenter questioned the applicability of the Bill of Rights to individuals aged 16-18. The department responds that the Bill of Rights applies to individuals aged 16-18, that these individuals may exercise the rights denoted in the Bill of Rights, and that the Bill of Rights should be given to both the patient and the parents, guardian, or conservator, provided the patient gives permission to share the information with the parents, guardian, or conservator. Another commenter recommended that the Patient's Bill of Rights be revised to provide that the Patient's Bill of Rights may be provided to the patient's parents, guardian, or other persons accompanying the patient. The department responds that this information in included in the rule as described in response to the previous comment. Language has been added to the Patient's Bill of Rights. A commenter also questioned the different times that hospitals must disclose the rights to patients. The department responds that language has been clarified in the rule to address the commenter's questions. A commenter expressed concern about the burden it places on the hospital to explain rights in a manner the patient "can understand." The department responds that the language the commenter refers to includes an example that derives from the Health and Safety Code and clearly establishes the meaning of "understand" in the context of the needs of hearing-impaired persons or persons who do not speak English. The phrases "in simple terms" and "visually impaired" have been added. Two commenters noted that under some circumstances, a patient may be unable to understand the rights explanation. One commenter recommended that an exception be provided in such cases, with clinical justification documented in the record. Another commenter requested that the procedure be repeated when the patient is more capable of understanding the information (when the patient has been stabilized, for example). The department responds that language has been added to the rule in sec.401.588(b) to describe procedures to be followed in such cases. A commenter recommended making the explanation of the rights optional by indicating that the explanation will occur only on the request of the patient. The department responds that the explanation of the rights is not optional. The same commenter asked that the term "entering" be changed to "upon admission" to be consistent with terminology used in the rule. The department responds that consistency with the rule is not critical because most patients will never read the rule. The objective is making the information understandable. Given the potential confusion over both terms, "entering" and "admission," the language has been revised to state "within 24 hours of being admitted to the hospital to receive services." A commenter noted that the Health and Safety Code only requires patients to be informed regarding Advocacy, Inc., "at the time of admission or discharge." The Patient's Bill of Rights requires this information be shared at admission and discharge. The department responds that the inclusion of this requirement was intentional to ensure that all patients have access to the information at the times when it may be meaningful to them. A commenter recommended including the address and telephone number of the Board of Medical Examiners for reporting complaints against licensed physicians. The department responds that a joint memorandum of understanding between 17 state agencies establishes a mechanism by which allegations against licensed or certified healthcare professionals, including physicians, will be immediately addressed to the appropriate agency. The purpose of the MOU is to create a single point of contact to which all complaints can be addressed, rather than list the addresses and phone numbers of a number of agencies and boards. A commenter recommended revising language relating to contacting the Ethics Committee of the State Bar of Texas to clarify that its application would be limited to persons who were involuntarily admitted. The department responds that the language has been revised. A commenter asked for clarification as to whether two separate copies of the "Statement That You Have Received This Pamphlet" were required to be signed and filed in the patient record to signify that the Patient's Bill of Rights was provided prior to admission, and an explanation of rights occurred within 24 hours following admission. The department responds that two copies are required, with the appropriate line checked off on the statement to indicate which action was provided. The same commenter also asked for information regarding witness requirements for the disclosure of rights within 24 hours of admission. The department responds that these requirements are found in sec.401.588(b). A commenter recommended including language as follows "If a patient refuses to sign the document, the presentation of the document must be witnessed by two members of the hospital staff and the unsigned Patient's Bill of Rights placed in the medical record along with a note signed by the witnesses indicating the refusal by the patient." The department responds that the language has been added to sec.401.588(b). Three commenters voiced concern over language included in basic right Number 3, concerning the right to a clean and humane environment, noting that the language seemed to imply an absolute guarantee of protection from harm for patients. The commenters recommended revising the language to provide a degree of leeway in the interpretation of the right. The department responds that the overqualification of basic human and civil rights has been demonstrated to interfere with the exercise of the right at all. The intent of the document is to provide patients with a summary of their rights in a basic format; qualifiers included in the Texas Health and Safety Code are not superceded. A number of commenters suggested that the language in basic right Number 4, concerning the right to appropriate treatment in the most open place available, was inconsistent with the intent of statutory language found in the Health and Safety Code. The department responds that the questioned language has been replaced with that found in the Health and Safety Code. A commenter requested deleting use of the word "mistreatment" and replacing it with "abuse" or "neglect" in basic right Number 5. The department responds that "mistreatment" is not necessarily encompassed by the terms "abuse" or "neglect." Several commenters suggested that basic right Number 6, concerning the right to be told in advance of any charges being made, requires provision of information that cannot be known at the time of admission. The department responds that the language has been revised to require caregivers to provide an estimate of charges. A commenter suggested further extending basic right number 6 to give patients the right to a detailed bill of services upon request, the name of an individual at the facility to contact for any billing questions, and an explanation of the clinicians' financial policies, types of financial arrangements, billing arrangements, and available options if your insurance benefits are exhausted or denied. The department responds that language has been added, noting that the patient should have access to such information. Another commenter suggested that the cost of pre-admission and post-discharge services be included in the information provided the patient regarding the cost of services. The department responds that pre-admission and post-discharge services are by definition included in the services the hospital would provide, and would therefore be included in any estimate of charges provided the patient. A commenter requested clarification as to what constitutes disclosure of the "sources of the programs reimbursement." The commenter also asked whether this disclosure was an absolute obligation of the hospital or only an obligation if the patient requests the information. The department responds that "sources of the programs reimbursement" means information about third-party payors (i.e., Medicaid Part B or insurance). The disclosure of this information is an absolute obligation of the hospital. Two commenters expressed concern over the consistency of basic right Number 7, concerning the right to fair compensation for labor, with mental health treatment regimes. A commenter recommended revising the language to limit its application to labor that is outside of the work allowed without compensation under JCAHO standards. The department responds that the right is based on the JCAHO standard, which will be met if federal labor laws, which also must be met, are complied with. A commenter suggested that basic right Number 8, concerning the right to be informed of the rules and regulations concerning conduct and treatment, was overly broad since "virtually every hospital rule or regulation in some way affects patient conduct or treatment." The commenter suggested limiting the right to "limitations on patient conduct." The department responds that reference to treatment is necessary to specifically address the rights of patients whose proposed course of treatment may include certain forms of behavior therapy. Two commenters expressed concern that the rights outlined in basic right Number 9, concerning the right to talk and write to people outside the hospital, were not supported by the Health and Safety Code. The commenters noted that provisions regarding having visitors "in private," sending and receiving sealed and uncensored mail, and an absolute right to make private telephone calls go beyond statute. The department responds that, as stated earlier, the overqualification of basic human and civil rights has been demonstrated to interfere with the exercise of rights at all, both by discouraging patients from exercising rights and by enabling certain subtle barriers to communication to be introduced. Language has been added to clarify the department's prohibition of these barriers. The right to contact an attorney regardless of whether an attorney-client relationship exists was included in the Patient's Bill of Rights to better protect basic civil liberties. A commenter also asked that basic right Number 9 be clarified to specify the effect of not reviewing a limitation every seven days. The department believes the intent is clear; limitations which are not reviewed after seven days should be terminated. A commenter suggested strengthening the language in the Patient's Bill of Rights to limit the use of subtle barriers to communication. The department responds that language has been added. A commenter noted that a statutory or regulatory basis could not be found for having another physician review the attending physician's exercise of therapeutic privilege of decision to limit the patient's access to the medical record. The department responds that the right is provided for in Public Law 99- 319, known as the Protection and Advocacy Act. A commenter requested clarification as to whether the disclosure mentioned in basic right number 11 was mandatory or mandatory only if the patient requests it. The commenter noted that the department's rule on client-identifying information (Chapter 403, Subchapter K) seemed to indicate that the provision was only mandatory with respect to clients undergoing substance abuse treatment. The department responds that all patients have the right to be told of the basic principles of confidentiality and disclosure of information, and therefore the requirement is mandatory. Several commenters expressed concern over terms referenced in basic right Number 14, concerning the right to refuse certain treatments. Three commenters asked that "unusual medications" be defined. A commenter asked that the term be replaced with the phrase "unnecessary or excessive medication"; yet another commenter asked that the term be deleted altogether. The department responds that a definition of "unusual medications" has been added. Several of the same commenters asked for deletion or definition of the term "hazardous assessment procedures." The department responds that this term is used in joint commission standards governing patient rights, which has application to hospitals other than private psychiatrics. The department recognizes the term may have limited application in private psychiatric hospitals. A commenter requested that the means of refusing "audiovisual equipment" be spelled out. The department responds that patients must be told prior to use of audiovisual equipment, and they may simply voice their refusal. A commenter suggested deleting the phrase "and other procedures for which your permission is required by law," and replacing it with "any treatment or service. Of course, if you are in the hospital because of a court order, the instructions of the court will be followed." The department responds that the recommended language seems to deny the individual hospitalized on a court order of any right to refuse any treatment. Even on a court order, a patient has the right to refuse certain treatments. A commenter asked that basic right Number 15 be revised to clarify that a patient must communicate the withdrawal of consent to the attending physician or a designated member of the staff for it to be effective. The department responds that communicating the intent to withdraw consent is understood to be an essential factor in withdrawing consent. Relating to basic right Number 16, concerning the right to a treatment plan for your stay in the hospital and participation in its development, a commenter noted that there should be documented evidence that family or another significant person was contacted. The department agrees, and has added language requiring such documentation. A commenter suggested expanding basic right Number 16 to assure the patients may attend and participate in multi-disciplinary treatment planning conferences relating to their care. The department responds that this is considered an inherent aspect of participating in the development of the treatment plan. Another commenter questioned the department's authority in outlining the right to request that a parents/conservator or legal guardian take part in the development of the treatment plan, as well as the right to expect that the request be reasonably considered. The department responds that participation of a parents/guardian or conservator in the development of the treatment plan is provided for in JCAHO standards. The right to expect that the request be considered is a basic right, and the department is authorized to include this provision by the Health and Safety Code, sec.571.006 which allows the department to adopt rules and regulations "as may be necessary for proper and efficient treatment of the mentally ill." A commenter requested that "unusual medications" be defined in basic right Number 17. The same commenter requested that the term "threat" be defined to clarify that statements about the possibility of applying for court-ordered treatment are not threats. Another commenter requested that "unusual" be deleted since the commenter had concerns over how the word would be defined in practice. The department responds that definitions of "unusual medications" and "threat" have been added to sec.401.583. A commenter requested that any informed consent obligations be made subject to the requirements of the Texas Medical Disclosure Panel, which identifies the risks that must be disclosed for certain procedures and in other cases provides that no disclosure is required. The department responds that the TMDP only provides guidance concerning informed consent for electroconvulsive therapy (ECT) . The department's consent procedure for ECT is more comprehensive and should be followed. The department requires that information about risks and benefits be given to patients for all forms of treatment. A commenter noted that the provisions of basic right Number 18, concerning the right to be free from unnecessary and excessive medication, goes beyond the provisions of the Health and Safety Code. Further, the commenter points out that the statement that the right is inconsistent with the provisions of the department rule on consent to treatment with psychotropic medications, which explicitly details medical and administrative procedures that permit medications to be given in the absence of consent in the first few days of care for involuntary patients and in the cases of involuntary or voluntary patients in emergencies when lives are in danger. The department agrees, and has added language to the right to reflect these situations. Another commenter objected to the use of the terms "mood-altering" and "mind- altering" to describe medications. The department responds that the terms have been deleted. A commenter asked for clarification of the term "court order," expressing uncertainty over whether the term referred to guardianship or commitment for treatment. The department responds the term refers to a court order for commitment to treatment. A commenter asked that basic right Number 19 be rewritten to clarify that the patient has the right not to be physically restrained except by doctor's order except in the case of an emergency, and then for a limited time only. The department agrees, and language has been added to clarify the right. A commenter suggested adding a parenthetical definition after "physically restrained" as follows: "(placement in a seclusion room or restraint by two or four point restraints)." The department agrees that a parenthetical definition is called for in this situation, and has added one as follows: "(placement in a locked room alone, or restriction of movement of parts of the body by person or device)." A commenter questioned the department's authority in articulating basic right Number 19, concerning the right not be physically restrained without a doctor's order. The commenter also asked that the statement that the restraint has to be removed as soon as possible be revised to include the language from the existing regulations "after the unacceptable behaviors are absent." The department responds that the authority for basic right Number 19 can be found in the Health and Safety Code, sec.576.024 (the Texas Mental Health Code, Article 5547-86). The statute requires that physical restraint be removed as soon as possible. Another commenter suggested that not all patients would be able to understand the explanation provided by the facility staff regarding physical restraint, and suggested this would create a Catch-22 for facilities. The commenter further noted that if the facility were required to tell the patient how long restraint will last, there would be no need to tell the patient what behavior was necessary to be released from restraint. The department responds that this standard is maintained in the department's rule on restraint and seclusion. Stating how long a patient will be restrained and telling the patient what behavior is necessary to be released from restraint enables the patient to effect earlier release by modifying behaviors necessitating the intervention. Several commenters expressed concern over the provision in basic right Number 20 that patients be informed of any change in any staff, professional or otherwise, responsible for the patient's care. The department agrees that the provision is overly broad, and has revised language to limit the right to information about any proposed change in the professional staff responsible for the patient's care. A commenter suggested revising basic right Number 21 to read, "You have the right to a review of your individual treatment plan by the hospital staff in accordance with its procedures." Another commenter suggested deleting the second sentence of the right altogether, noting that "TXMHMR has no authority to mandate that a physician enter into a physician-patient relationship with another physician's patient." The department responds that language has been modified. Several commenters addressed the issue of oral requests for release, as outlined in the section on "Special Rights of Voluntary Patients." The commenters suggested clarifying the concept of an oral request, and two commenters suggested developing a form request for release to be presented to an individual orally requesting release. A commenter asked that language be clarified to show that the request for release will not be treated as effective until it is signed by the patient. The department responds that language regarding the oral request has been clarified in sec.401.587(c)(4). However, the new language does not require the signature of the individual for the request to be treated as effective. The department is granted the authority to require that oral requests be treated as effective without a signature by the Health and Safety Code, sec.571.006 which allows the department to adopt rules and regulations, "as may be necessary for proper and efficient treatment of the mentally ill." A commenter recommended clarifying language in the "Special Rights of Voluntary Patients" to clarify that the physician is not always the person who initiates an emergency detention warrant or application for court-ordered mental health services. The department responds that language has been revised to clarify this point. The same commenter suggested clearly outlining the criteria for commitment in this section of the rule. The department agrees, and language has been added to this effect. A commenter noted that the third point of the first section of "Special Rights of Voluntary Patients" should read "16" instead of "18." The department responds that the Patient's Bill of Rights has been revised to reflect "16." A commenter requested further clarification regarding the rights of youths requesting release. The commenter questioned how far in advance the parents or legal guardian could sign a statement requesting the youth not be permitted to leave, and how long the statement would be effective. The department has revised this requirement to delete the signed statement. The parents or legal guardian must tell the doctor whether the request should be honored, and the doctor must document the date, time, and content of the conversation in the medical record. A commenter questioned language used in the same section which notes that "if you are under 16 years old, and the person who admitted you doesn't want you to leave, you may not be able to leave." The commenter interprets the Texas Health and Safety Code to indicate that the minor will not be permitted to leave. The department agrees, and "may not" has been replaced with "will not." With regard to the second section of the "Special Rights of Voluntary Persons, " a commenter asked that authority be given for the examination to be performed by a designee physician of the attending physician in cases where the attending physician is not available. The commenter also asked that it be clarified that the reference is to the attending physician on this hospitalization, and asked that it be clarified with whom the physician needs to discuss plans to seek court-ordered mental health services in the case of a minor under the age of 16. The department responds that the section has been revised to allow a physician's designee to complete the examination. The term "your" has been replaced with the term "the." And it is clarified that the physician must discuss plans to seek court-ordered mental health services for a minor under the age of 16 with the minor's parents, guardian, or conservator. A commenter suggested the physician's obligation should go further than simply a face-to-face interview within 24 hours. The commenter suggested the physician should have taken the step of completing a certificate of medical examination within that period of time. The department agrees, and language clarifying this responsibility has been added to sec.401.587(c)(4)(B)(i). With regard to the third section of "Special Rights of Voluntary Patients," two commenters requested that the language of the Health and Safety Code specifically outlining criteria for commitment be added. The commenters also expressed concern over use of the term "very badly." The department responds that language from the Health and Safety Code has been added and the term "very badly" has been deleted. A commenter noted that Senate Bill 33, 72nd Texas Legislature, appears to have lowered the term of imprisonment for intentionally causing or helping another person cause the unjust commitment of a person to a mental hospital from two years to one. The department responds that the language has been revised to reflect this change. A commenter noted that a fine of $5,000 for taking away someone's rights was hardly sufficient. The department agrees and hopes to see legislative action in this area. Several commenters pointed out that they were unaware of any requirement that the hospital is required to help a person apprehended for emergency detention to locate a lawyer, as outlined in the second section of "Special Rights of Persons Apprehended for Emergency Detention." The department responds that the right has been clarified to delete the right to have a lawyer appointed. However, the department believes a telephone should be provided to allow a patient to call a lawyer and that hospital staff should be available to help the patient call a lawyer if asked. Two commenters recommended using the precise language from the Health and Safety Code when articulating the reasons a person could be held involuntarily when brought to the hospital on an emergency detention. The department agrees, and has revised the section to reflect language from the Health and Safety Code. A commenter requested that additional exceptions for extensions for a decision regarding whether a patient has to stay be added to section four of "Special Rights of Persons Apprehended for Emergency Detention." The department responds that language addressing severe weather emergencies has been added. A commenter asked for clarification regarding what the department had in mind in terms of telling patients that it is the hospital's responsibility to return the patient to a "suitable place" if a doctor decides the patient may leave the hospital after being taken there on emergency detention. The department has revised the phrase to read, "another suitable place within reasonable distance." The same commenter was unable to locate authority for the requirement that patients be informed about the probable cause hearing during the emergency detention. The department responds that it is granted the authority to require this notification by the Health and Safety Code, sec.571.006, which permits the department to adopt such rules as "may be necessary for proper and efficient treatment of the mentally ill." The new sections are adopted under the Texas Health and Safety Code, sec.532. 015 (Texas Civil Statutes, Article 5547-202, sec.2.11), which provides the Texas Department of Mental Health and Mental Retardation with broad rulemaking powers; and under the Texas Health and Safety Code, sec.577.010 (Texas Mental Health Code, Article 5547-95), which provides the Texas Department of Mental Health and Mental Retardation with rulemaking powers specific to private psychiatric hospitals. sec.401.583. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Applicant-A person who is seeking licensure for a private psychiatric hospital from the Texas Department of Mental Health and Mental Retardation. Community center -A community mental health center or a community mental health and mental retardation center administered by a board of trustees pursuant to the Texas Health and Safety Code, Chapter 534 (Texas Mental Health and Mental Retardation Act, Texas Civil Statutes, Article 5547-201 et seq) . Department-The Texas Department of Mental Health and Mental Retardation. License-The permission granted to a person by the department to operate a private psychiatric hospital. Licensee-A person who has been granted a current valid license by the Texas Department of Mental Health and Mental Retardation. Patronage-Knowingly and willfully giving or receiving any remuneration directly or indirectly, overtly or covertly, in cash or in kind, in exchange for recommending or referring a person for treatment. Person-Any individual, partnership, corporation, association, political subdivision, or public or private organization of any character other than department. Physician-A person licensed to practice medicine in the State of Texas or a person employed by any agency of the United States having a license to practice medicine in any state of the United States. Private psychiatric hospital-An establishment offering inpatient services, including treatment, facilities, and beds for use beyond 24 hours, for the primary purpose of providing psychiatric assessment and diagnostic services and psychiatric inpatient care and treatment for mental illness. Such services must be more intensive than room, board, personal services, and general medical and nursing care. Although substance abuse services may be offered, a majority of beds must be dedicated to the treatment of mental illness in adults and/or children. Services other than those of an inpatient nature are not licensed or regulated by the department and are considered only to the extent that they affect the stated resources for the inpatient components. Programmatic licensing review-Review to ascertain compliance with general standards of care as established by national accrediting or certifying agencies. Standards of care which are also reflected in state and federal law and are specifically enumerated in this subchapter will be subject to statutory review as well. Special treatment procedures-Those procedures which include the use of any of the following: restraint; seclusion; electroconvulsive therapy; psychosurgery; behavior modification; unusual, investigational, and experimental drugs or therapy; maintenance drugs that have abuse potential; and research projects that involve inconvenience or risk to the patient. Statutory review -Review by the Texas Department of Mental Health or Mental Retardation or its duly authorized agent(s) to ascertain compliance with state and federal laws and the provisions of this subchapter. Threat-Actions in response to a request for discharge that are illegal or unjustified by the patient's condition. Unusual medications -Medication that has not been approved by the Food and Drug Administation for use in the United States, or medication that is being used to treat conditions for which its use has not been demonstrated through rational scientific theory and evidence in biomedical literature, controlled clinical trials, or expert medical opinion. sec.401.587. Patient Care Requirements for Licensure. (a) In order to be eligible for licensure as a private psychiatric hospital, a proposed facility must: (1) meet the definition of a private psychiatric hospital as delineated in sec.401.583 of this title (relating to Definitions); (2) be in substantial compliance with the standards as described in subsections (b) and (c) of this section; and (3) be in compliance with applicable state and federal laws and the provisions of this subchapter, including, but not limited to, the requirement contained in sec.401.588 of this title (relating to Patient Rights). (b) Each private psychiatric hospital shall provide overall operations, a physical plant, and all services and treatment in a manner consistent with recognized hospital standards. (1) For purposes of licensure, private psychiatric hospitals, other than those operated by community centers, shall be in substantial compliance with inpatient standards set forth by the Joint Commission on Accreditation of Healthcare Organizations; that is, the standards for inpatient settings in the current edition of the Accreditation Manual for Hospitals. Additionally, such hospitals shall comply with standards set forth by the Joint Commission on Accreditation of Healthcare Organizations in the current edition of the Consolidated Standards Manual for: (A) special treatment procedures; and (B) patient rights. (2) In keeping with accreditation policies currently set forth by the Joint Commission on Accreditation of Healthcare Organizations for inpatient programs of community centers, private psychiatric hospitals operated by community centers shall be in substantial compliance with inpatient standards set forth by the Joint Commission on Accreditation of Healthcare Organizations in the current edition of the Consolidated Standards Manual. Additionally, such hospitals shall provide nursing, medical, and pharmacy services in accordance with standards set forth in the current edition of the Accreditation Manual for Hospitals. (c) The following provisions are requisite to obtaining and maintaining licensure by the Texas Department of Mental Health and Mental Retardation. (1) All admissions, voluntary or involuntary, must be ordered and clinically justified by a physician. (A) Within 72 hours prior to admission of a patient on a voluntary basis: (i) an in-person medical examination must have been conducted by a physician; and (ii) an in-person assessment of the need for psychiatric hospitalization must be ordered by a physician and must have been performed by a qualified mental health professional as defined in the hospital's medical staff bylaws. (B) No person shall be admitted to the hospital for emergency detention unless such admission is supported by a written statement in the patient record by a physician who has conducted a preliminary examination of the person and who has determined that the person meets the criteria for admission outlined in the Texas Health and Safety Code, sec.573.022 (Texas Mental Health Code, Article 5547-27). (i) A person cannot be taken to a private psychiatric hospital for emergency detention unless the head of the facility agrees in advance to accept the individual. A facility shall only accept such patients when a physician is available to immediately evaluate the person to determine whether the person meets the criteria for emergency detention outlined in the Texas Health and Safety Code, sec.573.022. Upon arrival at the hospital, the rights of persons apprehended for emergency detention, as contained in the Patient's Bill of Rights, must be provided and explained to the patient by hospital staff. (ii) Submission of an application for voluntary admission after the person has been apprehended for emergency detention but before the preliminary evaluation for admission for emergency detention has been conducted does not negate the requirements for the preliminary evaluation for emergency detention under the Texas Health and Safety Code, sec.573.022 (Mental Health Code, Article 5547-27). (C) The hospital must ensure that each patient's treatment is carried out by appropriately credentialed and privileged professionals. Patient evaluation and treatment planning and implementation are the responsibility of all participating professionals. Each patient will have a treating physician, who shall have final authority for care and treatment. (2) Hospitals licensed by TXMHMR shall not employ, contract with, refer to, or accept referrals from any person who offers or accepts remuneration, in kind gifts or services, or other compensation of any kind for securing patients or patronage, including, but not limited to, securing patients or patronage in violation of the Health and Safety Code, Chapter 1561, Subchapter I, sec.161.091. (3) Charges for services must be billed using clear, easy to understand descriptions. (4) Any voluntary patient expressing a request for release shall be given an explanation of the process for requesting release and afforded the opportunity to request release in writing. When a written request for release is signed or presented to any direct care staff of the hospital, it should be witnessed and dated and timed. Oral statements of the desire to be discharged shall be treated as written requests for release and shall be reduced to writing by staff. Without regard to whether a voluntary patient agrees to sign paperwork requesting discharge from services, the request will be documented and processed by staff. The refusal or inability of the patient to sign the request for discharge will be documented on the unsigned written request. All written or prepared requests for discharge will be timed, dated, and signed by two staff, who shall provide information to the patient that pursuant to law, during the ensuing period of up to 24 hours, the patient will be observed and evaluated to determine the clinical appropriateness of seeking an involuntary commitment to services. The form and format for requesting release and the information to be provided may be prescribed by the department. (A) As soon as possible, but no more than 24 hours after receipt of the request for release, the patient shall be examined face-to-face and assessed for discharge readiness by the patient's physician or another physician, with input from the members of the treatment team. (B) A patient must not be detained unless the individual meets the commitment criteria and the hospital uses the additional time to facilitate the commitment process. (i) If, in the physician's clinical judgment, the patient meets the criteria for involuntary commitment, the physician must execute a certificate of medical examination within 24 hours of the patient's request for discharge and inform the patient, and in the case of a minor under 16, the patient's family, guardian, or conservator, of the intent to seek an involuntary commitment. The physician must provide such information to the family of any patient who so authorizes. (ii) If, in the physician's clinical judgment, the patient does not meet the criteria for involuntary commitment, the patient must be discharged as soon as possible following the determination that pursuit of involuntary commitment is not appropriate, but not more than 24 hours following the request for discharge. (5) Threats intended to influence a voluntary patient's decision to exercise the right to request discharge are strictly prohibited. Allegations will be considered potential abuse as defined in Chapter 404, Subchapter C of this title (relating to Patient Abuse in Private Psychiatric Hospitals), and will be investigated as such. Substantiated allegations will be grounds for licensure review and possible revocation. (6) All medications shall be administered by licensed nurses, licensed physicians, or other professionals authorized by law to administer medications. All medication administration procedures performed by licensed nurses shall be under the direct supervision of a registered nurse. (7) Each private psychiatric hospital shall adopt policies and procedures establishing professionally recognized and accepted standards of care. In developing such policies and procedures, each private psychiatric hospital shall refer to the rules of the Texas Department of Mental Health and Mental Retardation governing patient care in state hospitals or to other professionally recognized and accepted standards of care. The source or sources utilized shall be noted in the policies and procedures. At a minimum, each private psychiatric hospital shall adopt policies and procedures in the areas of: (A) prescribing practices for medications, including the use of polypharmacy, maximum dosage levels, and consent to medication; (B) procedures for electroconvulsive therapy; and (C) procedures for restraint and seclusion. sec.401.588. Patient Rights. (a) Each patient of a private psychiatric hospital shall have the rights as delineated in applicable TXMHMR policies governing the rights of persons receiving mental health services and in the "Patient's Bill of Rights," herein identified as Exhibit C and contained in this subsection as follows, any revisions thereto adopted under the rulemaking procedures of the Administrative Procedures and Texas Register Act. Copies of the Patient's Bill of Rights are available from the Texas Department of Mental Health and Mental Retardation, P.O. Box 12668, Austin, Texas 78711-2668, and must be displayed prominently at all times in all areas frequented by persons receiving services (e.g., dayrooms, recreational rooms, waiting rooms, lobby areas). A sufficient number of copies will be kept on hand in each of these areas in order that a copy may be readily available to anyone requesting one. insert page 2 [graphic] (b) Each patient shall be informed of the rights delineated in the Patient's Bill of Rights. (1) Prior to admission, one copy of the "Patient's Bill of Rights" shall be given to each person, whether voluntarily admitted or committed, and, as appropriate, to his or her family members, guardian, or friend. A duplicate copy of the "Patient's Bill of Rights," signed by the person to be voluntarily admitted or committed and witnessed by his or her family members, guardian, or friend, shall be filed in the patient record. If a family member, guardian, or friend is not available to witness, a staff member shall witness. If a patient refuses to sign the document, the presentation of the document must be witnessed by two members of the hospital staff and the unsigned Patient's Bill of Rights placed in the medical record along with a note signed by the witnesses indicating the refusal by the patient. (2) Within 24 hours of being admitted to the hospital to receive services, the rights outlined in the Patient's Bill of Rights will be explained aloud to the patient in a way the patient can understand (e.g., in the patient's language if the patient is not English- speaking, in sign language if the patient is hearing-impaired). A duplicate copy of the Patient's Bill of Rights, signed and witnessed as described in paragraph (1) of this subsection, shall be placed in the patient record. (3) If, owing to the patient's condition at the time of admission and 24 hours later, the patient does not appear to understand the rights document or right's explanation, staff will give the patient another copy of the Patient's Bill of Rights and attempt to provide an explanation periodically until understanding is reached or until discharge. The necessity for repeating the rights communication process will be documented, signed, and dated by staff. (c) Each patient of a private psychiatric hospital shall be protected from abuse and neglect and any allegation of such shall be reported and actions taken in accordance with Chapter 404, Subchapter C of this title (relating to Patient Abuse in Private Psychiatric Hospitals). sec.401.589. Statutory Review: Enforcement of Laws. (a) Without regard to programmatic licensing review and accreditation by the Joint Commission on Accreditation of Healthcare Organizations or certification by Medicare, TXMHMR may make such investigations as it deems necessary and proper to obtain compliance with the provisions of state law and TXMHMR rules. Each private psychiatric hospital must: (1) comply with the provisions of this subchapter; (2) correct in timely fashion any deficiencies cited by the department with regard to the requirements of this subchapter; (3) cooperate with investigations conducted by the department or its agents of reports of abuse, neglect, violation of patient rights, or other deficiency in the operation of the facility; and (4) cooperate with investigations conducted by the department or its agents concerning compliance with state or federal laws or this subchapter. (b) Any duly authorized agent of the department may at any time enter upon the premises of any private psychiatric hospital to inspect the facility and conditions, to observe the program for care and treatment, to question employees and patients of the hospital, or to take other action deemed necessary to ascertain compliance state or federal laws or this subchapter. In interviewing patients, the department's agent will strive to be sensitive to therapeutic issues. Any such duly authorized agent may have access for the purposes of examination and transcription to such records and documents as the agent deems relevant to the investigation. (c) The department may maintain an action in the name of the State of Texas for injunction or any other process against any person or political subdivision to restrain the unlicensed operation of a psychiatric hospital or to restrain the operation of a hospital that has violated or is violating the laws of the State of Texas or the United States. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 10, 1992. TRD-9202024 Anne K. Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: March 2, 1992 Proposal publication date: December 10, 1991 For further information, please call: (512) 465-4670 Chapter 404. Protection of Clients and Staff Subchapter D. Abuse, Neglect, and Exploitation of Persons in Boarding Homes Registered by MHMRAs 25 TAC sec.sec.404.101-404.107 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts the repeal of sec.sec.404.101-404.107 concerning abuse, neglect, and exploitation of persons in boarding homes registered by MHMRAs, without changes to the proposed text as published in the September 24, 1991, issue of Texas Register (16 TexReg 5253). The purpose of the repeal is to allow the removal of unnecessary sections as the procedures set forth in those sections will no longer be in the purview of TXMHMR. Senate Bill 865 of the 72nd Texas Legislature provides that, effective September 1, 1991, the responsibility for investigating allegations of abuse, neglect, and exploitation of elderly and disabled residents of personal care facilities was to have been assumed by the Texas Department of Health. No public comment was received on the proposed repeal. The repeal of these sections is adopted under Texas Civil Statutes, Article 5547-202, which provides the Texas Board of Mental Health and Mental Retardation with rulemaking powers. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 10, 1992. TRD-9202026 Ann Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: March 2, 1992 Proposal publication date: September 24, 1991 For further information, please call: (512) 465-4670 TITLE 28. INSURANCE Part I. Texas Department of Insurance Chapter 5. Property and Casualty Insurance Subchapter C. Texas Medical Liability Insurance Underwriting Association 28 TAC sec.5.2002 The State Board of Insurance adopts an amendment to 28 TAC sec.5.2002 concerning the Texas Medical Liability Insurance Underwriting Association. Section 5.2002(d) addresses the selection of members to the board of directors of the Texas Medical Liability Insurance Underwriting Association. This section is adopted without changes to the proposed text as published in the September 20, 1991, issue of the Texas Register (16 TexReg 5197). The adoption of the amendment is necessary in order to comply with recent legislation which amended the Insurance Code, Article 21.49-3, sec.6, and to otherwise appropriately revise the procedure for selecting directors. The amendment adopts the procedure for selecting directors set forth in House Bill 2, sec.9.11, as enacted by the 72nd Legislature, Regular Session. This section requires that the board of directors consist of nine directors to be selected annually as follows: five directors are to be representatives of insurers required to be members of the Texas Medical Liability Insurance Underwriting Association; one director is to be a physician selected by the Texas Medical Association or its successor; one director is to be representative of hospitals and appointed by the Texas Hospital Association or its successor; and two directors are to be members of the public and appointed by the State Board of Insurance. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Insurance Code, Article 21.49-3, sec.3(c), which authorizes the State Board of Insurance to promulgate a plan of operation for the Texas Medical Liability Insurance Underwriting Association. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas on February 10, 1992. TRD-9202043 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: March 2, 1992 Proposal publication date: September 20, 1992 For further information, please call: (512) 463-6327 Subchapter E. Texas Catastrophe Property Insurance Association Plan of Operation 28 TAC sec.5.4001 The State Board of Insurance of the Texas Department of Insurance adopts an amendment to sec.5.4001, concerning plan of operation, without changes to the proposed text as published in the November 15, 1991, issue of the Texas Register (16 TexReg 6638). Section 5.4001 concerns the plan of operation of the Texas Catastrophe Property Insurance Association (TCPIA). The amendment is necessary to incorporate changes to the plan of operation required by House Bill 2, as enacted by the 72nd Texas Legislature. Subsection (b)(2) is amended to provide the method of determining the board of directors of the association. The total number of directors of the association is nine, with five directors elected from the membership of the association, two directors appointed by the Board from the public sector based on nominations by the Office of Public Insurance Counsel and two directors which are licensed local recording agents appointed by the State Board of Insurance. The amendment sets forth the procedures for the election of the directors and the appointment of the directors, with the new board of directors to assume office on March 1, 1992. The requirements for notice of regular and emergency meetings of the directors is established with 10 days notice to directors of a regular meeting and at least two hours notice to directors of an emergency meeting. In addition, any meeting of the board of directors of the association by conference call is also subject to the same requirements applicable to other meetings of the board of directors. Any executive committee must consist of three of the directors of the association comprised of the Chairman, Vice-Chairman and Secretary- Treasurer. At least one director appointed by the State Board of Insurance must be elected as a member of the executive committee. The powers of the executive committee are only those delegated by the board of directors in the actual day to day administrative management of the association. Any vacancy occurring on the board of directors is to be filled either by election from the membership of the association if an elected directorship is vacant or by appointment of the State Board of Insurance if an appointed directorship is vacant. The amendment to subsection (b)(3) provides for a rotation of directors elected as officers at least every two years. The amendment to subsection (d)(1)(c)(i) provides the maximum limits of liability will be set forth in the rules manual as adopted under 28 TAC sec.5.4501 and the amendment to subsection (d)(1)(c)(iii) provides that the maximum limits of liability will be adjusted for inflation as part of the annual hearing on property rates by the State Board of Insurance. The amendment to subsection (d) (4)(D) provides for the proper appeals process in the event of a disputed claim. A person has the right to appeal the association's determination either to the Commissioner of Insurance by written request to the Commissioner within 30 days after the determination, under Insurance Code, Article 21.49, sec.9, or bring an action against the association in the county in which the covered property is located or in a District Court of Travis County under Insurance Code, Article 21. 49, sec.9A. A person may not proceed under the Insurance Code, sec.9 and sec.9A, for the same determination by the association. If a person files an appeal with the Commissioner of Insurance, the person has the option of a hearing in the county in which the covered property is located or in Travis County. Subsection (e)(1)(A)(vii) incorporates specific roofing material standards to be applicable to risks located in the catastrophe area. The amendment to subsection (e)(4) is added to clarify that property built prior to January 1, 1988 that was subject to the construction standards of a recognized building code or was previously insured for windstorm coverage through a licensed insurer will be considered insurable and may obtain coverage through the TCPIA. No comments were received regarding adoption of the amendment. The amendment is adopted under the Insurance Code, Article 21.49, sec.5(c), which authorizes the State Board of Insurance to adopt the plan of operation of the Texas Catastrophe Property Insurance Association or any amendment thereto. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 10, 1992. TRD-9202041 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: March 2, 1992 Proposal publication date: November 15, 1991 For further information, please call: (512) 463-6327 28 TAC sec.5.4101 The State Board of Insurance of the Texas Department of Insurance adopts an amendment to sec.5.4101, without change to the proposed text as published in the November 15, 1991, issue of the Texas Register (16 TexReg 6642). Section 5.4101 adopts by reference the Texas Catastrophe Property Insurance Policy for windstorm and hail, which is amended to incorporate changes into the conditions of the policy required by House Bill 2, 72nd Texas Legislature, Regular Session (1991). The amendment incorporates new policy provisions into the Texas Catastrophe Property Insurance Policy for Windstorm and Hail regarding replacement cost coverage for an insured dwelling as set out under the Insurance Code, Article 21. 49 sec.8A. The new provision automatically provides for full replacement cost coverage for an insured dwelling if at the time of a loss the total amount of insurance applicable to the dwelling is equal to 80% or more of the full replacement cost of the dwelling or equal to the maximum amount of insurance otherwise available through the association. The amendment incorporates into the basic conditions of the policy the prompt payment of claims language contained in endorsement Form Number TCPIA-29, Mandatory Endorsement, as adopted under 28 TAC sec.5.4201. This will eliminate the need to attach a separate mandatory endorsement Form Number TCPIA-29 to amend the basic conditions of the policy for prompt payment of claims. The amendment also incorporates the various appeals options available to an insured under the policy in the event of a claims dispute. Those options include the right of an insured to appeal any act, ruling, or decision of the association either to the Commissioner of Insurance under the Insurance Code, Article 21.49, sec.9, or to bring an action in a district court in the county in which the property is located or in a district court of Travis County, pursuant to the Insurance Code, Article 21.49, sec.9A. If the insured chooses to appeal to the Commissioner of Insurance, the insured has the option to a hearing in the county in which the property is located or in Travis County. The amendment also incorporates a new provision into the basic conditions of the policy to allow for additional time periods for processing a claim in the event of a weatherrelated catastrophe or major natural disaster as required under Insurance Code, Article 21.55. In addition, the amendment incorporates the street address of the Texas Catastrophe Property Insurance Association and the association's toll free number for information or complaints, both of which must be shown on the face of the policy. No comments were received regarding adoption of the amendment. The amendment is adopted under the Insurance Code, Article 21.49, sec.8, which authorizes the State Board of Insurance to approve policy forms and endorsements for the Texas Catastrophe Property Insurance Association. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 10, 1992. TRD-9202042 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: March 2, 1992 Proposal publication date: November 15, 1991 For further information, please call: (512) 463-6327 Subchapter E. Texas Catastrophe Property Insurance Association Texas Special Mobile Home Windstorm and Hail Insurance Policy 28 TAC sec.5.4401 The State Board of Insurance of the Texas Department of Insurance adopts an amendment to 28 TAC sec.5.4401, concerning Texas Special mobile home windstorm and hail insurance policy-deductible coverage, without change to the proposed text as published in the November 15, 1991, issue of the Texas Register (16 TexReg 6643). Section 5.4401 adopts by reference the Texas Special Mobile Home Windstorm and Hail Insurance Policy, which is amended to incorporate changes into the conditions of the policy required by House Bill 2, 72nd Texas Legislature, Regular Session (1991). The amendment incorporates into the basic conditions of the policy the prompt payment of claims language contained in endorsement Form Number TCPIA-29, Mandatory Endorsement as adopted under 28 TAC sec.5.4201. This will eliminate the need to attach a separate mandatory endorsement Form Number TCPIA-29 to amend the basic conditions of the policy for prompt payment of claims. The amendment also incorporates the various appeals options available to an insured under the policy in the event of a claims dispute. Those options include the right of an insured to appeal any act, ruling, or decision of the association either to the Commissioner of Insurance under the Insurance Code, Article 21.49 sec.9, or to bring an action in a district court in the county in which the property is located or in a district court of Travis County, pursuant to the Insurance Code, Article 21.49 sec.9A. If the insured chooses to appeal to the Commissioner of Insurance, the insured has the option to a hearing in the county in which the property is located or in Travis County. The amendment also incorporates a new provision into the basic conditions of the policy to allow for additional time periods for processing a claim in the event of a weather- related catastrophe or major natural disaster as required under the Insurance Code, Article 21.55. In addition, the amendment incorporates the street address of the Texas Catastrophe Property Insurance Association and the association's toll free number for information or complaints, both of which must be shown on the face of the policy. No comments were received regarding adoption of the amendment. The amendment is adopted under the Insurance Code, Article 21.49 sec.8, which authorizes the State Board of Insurance to approve policy forms and endorsements for the Texas Catastrophe Property Insurance Association. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 10, 1992. TRD-9202044 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: March 2, 1992 Proposal publication date: November 15, 1991 For further information, please call: (512) 463-6327 Chapter 7. Corporate and Financial Regulation Subchapter A. Examination and Corporate Custodian and Tax 28 TAC sec.7.76 The State Board of Insurance of the Texas Department of Insurance adopts new sec.7.76, with changes to the proposed text as published in the November 5, 1991, issue of the Texas Register (16 TexReg 6268). Section 7.76 concerns annual and quarterly statement diskette filing requirements for financial activities by certain insurance companies and certain other entities regulated by the board, and adopts by reference the diskette specifications manuals which specify the form and content of the required computerized data provided on diskette. This new section is necessary to facilitate the appropriate reporting in 1992 of financial information and business operations and activities during the 1991 and 1992 calendar years by affected entities, thereby providing computerized financial data for the timely and reliable review of each entity's annual and quarterly statements. Rapid and reliable review can produce fast action when necessary to maintain a regulated entity in sound financial condition that will protect policyholders and other consumers. The change would delete the following text from subsection (b): provided, however, any Texas stipulated premium company which is authorized to write life insurance only, and which collected premium income in the prior year of less than $1 million and which had a profit from operations in the prior two calendar years, is not required to file quarterly diskettes with the National Association of Insurance Commissioners. Nothing in this section prohibits the Texas Department of Insurance from requiring any insurance company or other regulated entity from filing periodic financial reports with the Texas Department of Insurance pursuant to other rule or statutory authority. When the new section was proposed consideration was given to exempt certain stipulated premium insurance companies from filing quarterly diskettes with the National Association of Insurance Commissioners. After further review it was decided that these companies should file diskettes with the National Association of Insurance Commissioners. The new section requires that, in 1992, certain regulated entities must provide the National Association of Insurance Commissioners with machine-readable diskettes containing financial information concerning activities during the 1991 and 1992 calendar years. The section adopts by reference the diskette specification manuals which specify the form and content of the computerized data which the regulated entities must provide on diskette. These manuals require information concerning the financial condition and business operations and activities of the regulated entities. No comments were received regarding adoption of the new section. The new section is adopted under the Texas Insurance Code, Articles 1.04, 1. 11, 3.07, 6.11, 6.12, 8.07, 8.08, 8.21, 8.24, 10.30, 11.06, 11.19, 15.15, 15.16, 17.22, 17.25, 18.12, 19.08, 20.02, 21.21, 21.43, 21.54, 22.06 and 22.18. The Insurance Code, Article 1.04, authorizes the Texas Department of Insurance to determine policy and rules. The Insurance Code, Article 1.11, authorizes the board to change the form of the statement blanks and other reporting forms as shall seem to it best adapted to elicit a true exhibit of the financial condition and the methods of transacting the business of insurers and other regulated entities, and requires certain insurers and other regulated entities to file machine-readable diskettes with the National Association of Insurance Commissioners. The Insurance Code, Article 21.21, prohibits any person engaged in the business of insurance from filing with any public official any false statement of financial condition of an insurer with intent to deceive and requires that all statements made by persons in the business of insurance be truthful and not misleading. The Insurance Code, Article 21.43, requires that the provisions of the Insurance Code are conditions on which foreign insurance corporations are permitted to do business in this state and requires foreign insurers to comply with the provisions of the Insurance Code. The Insurance Code, Articles 3.07, 6.11, 6.12, 8.07, 8.08, 8.21, 8.24, 10.30, 11.06, 11.19, 15.15, 15.16, 17.22, 17.25, 18.12, 19.08, 20.02, 21.54, 22.06 and 22.18 requires the filing of financial reports and other information by insurers and certain other entities regulated by the board, applies particular statutory law respecting reports by those insurers and certain other entities, and specifies particular rule-making authority relating to those insurers and certain other entities. sec.7.76. Requirements for Annual and Quarterly Statement Diskette Filing in 1992 Concerning Financial Activities During 1991 and 1992. (a) This section applies to the following entities: (1) stock life companies; (2) mutual life companies; (3) group hospital service corporation; (4) stipulated premium companies; (5) stock fire companies; (6) stock casualty companies; (7) stock fire and casualty companies; (8) mutual fire companies; (9) mutual casualty companies; (10) mutual fire and casualty companies; (11) county mutual companies; (12) Lloyds; (13) reciprocals; (14) risk retention groups; and (15) fraternal benefit societies. (b) Concerning activities during calendar years 1991 and 1992, each and every stock life company, mutual life company, group hospital service corporation, and stipulated premium company shall provide the National Association of Insurance Commissioners with machine-readable diskettes containing computerized financial data. In 1992, each of these entities shall file diskettes in addition to and at the time of filing its Form 1 annual statement and its quarterly statements with the National Association of Insurance Commissioners. The data on the diskettes shall be in the form and content specified in the current annual statement diskette filing specifications for life, accident, and health for the year ended December 31, 1991, and the 1992 quarterly statement diskette filing specifications, which the board adopts by reference under this subsection. The annual and quarterly statement diskette filing specification manuals are published by the National Association of Insurance Commissioners and may be obtained from the Publications Division, 120 West 12th Street, Suite 1100, Kansas City, Missouri 64105. (c) Concerning activities during calendar years 1991 and 1992, each and every stock fire company, stock casualty company, stock fire and casualty company, mutual fire company, mutual casualty company, mutual fire and casualty company, county mutual company, Lloyds, reciprocal, and risk retention group shall provide the National Association of Insurance Commissioners with machine- readable diskettes containing computerized financial data. In 1992, each of these entities shall file diskettes in addition to and at the time of filing its Form 2 annual statement and its quarterly statements with the National Association of Insurance Commissioners. The data on the diskettes shall be in the form and content specified in the current annual statement diskette filing specification manuals for fire and casualty for the year ended December 31, 1991, and the 1992 quarterly statement diskette filing specifications, which the board adopts by reference under this subsection. The annual and quarterly statement diskette filing specification manuals are published by the National Association of Insurance Commissioners and may be obtained from the Publications Division, 120 West 12th Street, Suite 1100, Kansas City, Missouri 64105. (d) Concerning activities during calendar year 1991, each and every fraternal benefit society shall provide the National Association of Insurance Commissioners with machine-readable diskettes containing computerized financial data. In 1992, each of these entities shall file diskettes in addition to and at the time of filing its Form 4 annual statement with the National Association of Insurance Commissioners. The data on the diskettes shall be in the form and content specified in the current annual statement diskette filing specifications for fraternal for the year ended December 31, 1991, which the board adopts by reference under this subsection. The annual statement diskette filing specification manual is published by the National Association of Insurance Commissioners and may be obtained from the Publications Division, 120 West 12th Street, Suite 1100, Kansas City, Missouri 64105. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 10, 1992. TRD-9202040 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: March 2, 1992 Proposal publication date: November 5, 1991 For further information, please call: (512) 463-6327 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part I. General Land Office Chapter 1. Executive Administration Vacancies 31 TAC sec.1.3 The General Land Office adopts new sec.1.3, concerning fees, without changes to the proposed text as published in the January 3, 1992, issue of the Texas Register (17 TexReg 27), as corrected in the January 31, 1992 issue. The new section is adopted to further the efforts of the General Land office to create a more accessible and logical fee structure. As adopted, the section consolidates all General Land Office and School Land Board fees in one section. The new section revises various fees, and clarifies the application of certain fees. No comments were received regarding adoption of the amendment. The next section is adopted under the Natural Resources Code, sec.sec.31.051, 32. 062, and 51.014, which authorize the commissioner to make, amend, and enforce rules consistent with the law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 4, 1992. TRD-9201970 Garry Mauro Commissioner General Land Office Effective date: February 28, 1992 Proposal publication date: January 3, 1992 For further information, please call: (512) 463-5394 Fee Schedule 31 TAC sec.1.91 The General Land Office adopts the repeal of sec.1.91, concerning fees, without changes to the proposed text as published in the January 3, 1992, issue of the Texas Register (17 TexReg 32). The repeal is adopted to further the efforts of the General Land Office to create a more accessible and logical fee structure. The repeal of this section allows the adoption of new sec.1.3 which will consolidate all General Land Office and School Land Board fees into one section, revise various fees, and clarify the application of certain fees. No comments were received regarding adoption of the repeal. The repeal is adopted under the Natural Resources Code, sec.sec.31.051, 32.062, and 51.014, which authorizes the commissioner to make, amend, and enforce rules consistent with the law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 4, 1992. TRD-9201966 Garry Mauro Commissioner General Land Office Effective date: February 28, 1992 Proposal publication date: January 3, 1992 For further information, please call: (512) 463-5394 Part II. Texas Parks and Wildlife Department Chapter 57. Fisheries Blue Crab Fishery Management Plan 31 TAC sec.57.701 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing held January 23, 1992, adopted new sec.57.701(a) and (b) by reference, concerning the Texas Blue Crab Fishery Management Plan, without changes from the proposed text as published in the December 20, 1991, issue of the Texas Register (16 TexReg 7453). However, the management plan for blue crabs as proposed was adopted with several revisions derived from public comments. The revisions, as adopted, were made to the section on Management Strategies and include: encouragement to the commission chairman the Blue Crab Advisory Committee that will represent a balance of interests in the blue crab fishery; more guidance to the recommendation to review a larger minimum size to increase yield of the resource; addition of a recommendation on closed areas to review the use of closed areas during certain times; consideration in the recommendation on licenses to include an evaluation of a trap tag and a crab fisherman license; and an addition to the list of recommendations to direct the advisory committee to determine a schedule for action and report to the commission's Regulatory Committee on an annual basis. The adopted rules and the Texas Blue Crab Fishery Management Plan have as their factual basis scientific studies on the biology of the blue crab resource and the department's experience with methods to manage the blue crab resource in the state. Copies of the Texas Blue Crab Fishery Management Plan as adopted by the Texas Parks and Wildlife Commission can be obtained from the Texas Parks and Wildlife Department. The rules and plan as adopted are needed to prevent overfishing while achieving on a continuing basis, the optimum yield for the Texas blue crab fishery. The rules as adopted provide guidelines and policies through the Texas Blue Crab Fishery Management Plan to: (1) prevent overfishing while achieving, on a continuing basis, the optimum yield for the Texas blue crab fishery; (2) provide management measures based on the best scientific information available; (3) provide recommendations to manage the blue crab resource; (4) provide measures, where practicable, that will promote efficiency in utilizing blue crab resources; (5) provide measures, where practicable, that will minimize cost and avoid unnecessary duplication in their administration; (6) and provide for the placement of crab traps based on safety of persons engaged in fishing, boating, and other water activities. Comments made by the public concerning the proposed rules were presented to the Texas Parks and Wildlife Commission in a summarized form from public hearings, a public meeting, a letter, and telephone calls. On January 7 and 8, 1992, four public hearings were held in Nueces, Calhoun, Galveston, and Jefferson Counties. A public meeting was also held for the Asian community in Palacios to discuss the proposed plan. Approximately 72 people attended these hearings and 18 people attended the public meeting. The primary comments received included the following: (1) concerns for effects of pollution on the blue crab resource; (2) concern that the current size limit is too restrictive for the soft shell crab industry; (3) concerns for closing areas for traps; (4) opposition to the crab trap tag; concern for the concentration of crab traps in some areas; (5) suggestion for escape vents in crab traps; (6) opposition to the daylight only restriction on trap tending; (7) questions on data used in plan; (8) suggestions that the advisory committee should represent a wide variety of interests; (9) desire for more time to review the plan; (10) recommendation that investigation be done on the impact of salt boxes on crabs; (11) discontent with public hearings and past decisions made by the department; (12) a request for a seasonal closure on the fishing of crabs; (13) comments on stone crabs; (14) and expressions of various degrees of support for the plan. All public comments received are available for public inspection at the Texas Parks and Wildlife Department, Headquarters Complex, 4200 Smith School Road, Austin, Texas 78744, 1-800-792-1112, extension 4863 or (512) 389-4863. No one representing any organized groups testified on the proposed rule or the plan. A working group was assembled by the department from the crab industry and recreational community to review the plan and this group made comments on the final draft of the plan which were incorporated into the plan sent to the Texas Register. The majority of the comments received referred to specific recommendations for regulatory change or problems with current regulations. The plan does not change any current regulations but does provide recommendations for future considerations in the management of the Texas blue crab resource. The agency disagrees with the previously mentioned comments as follows (using the same numbering system as in previous): (1) protection of habitat and the environment is a constant effort of the department but environmental conditions do not preempt the requirement to exercise management on the resource or users of the resource; (2) recommendation number 3 and 11 of the plan address the size limit for blue crabs and the need to monitor the developing soft-shell crab industry for future management decisions; (3) recommendation number 5 of the plan speaks to closed areas and gives guidance to the advisory committee and staff in this area, but no specific closures are recommended; (4) recommendation number 8 of the plan deals with the licensing for gear and fishermen in the crab fishery and provides to the advisory committee and staff guidance to review the current procedures; (5) recommendation number 5 of the plan provides guidance to the advisory committee and staff in consideration of spacing, placement, and marking of traps; (6) recommendation number 6 of the plan gives guidance to the advisory committee and staff to consider the use of escape vents in crab traps; (7) recommendation number 4 of the plan provides guidance for consideration of a restriction for daylight tending of traps to facilitate law enforcement and reduce crab and crab trap theft but any rule change will require a formal process; (8) the data used in the plan is the best scientific data available and corresponds with the data used in the blue crab management plan developed by the Gulf States Marine Fisheries Commission, other scientific literature, as well as data provided by the comprehensive and systematic resource monitoring programs of the department; (9) recommendation number 2 of the plan as amended, gives additional guidance to the chairman of the Texas Parks and Wildlife Commission which describes the types of interests which should be considered for appointment to the advisory committee; (10) notification of the plan availability was placed in the Texas Register on December 20, 1991, as required, notification was also placed in the department's news release packet to outdoor writers and public hearings were announced and held along the coast with comments accepted throughout the period until final adoption; (11) recommendation number 6 of the plan recommends a study on the issue of culling and salt box use; (12) the department has revised its public hearing process to allow for more public involvement and input into the process, however, past practices have been in keeping with the administrative requirements; (13) recommendation number 5 of the plan deals with closed areas or seasons for crab fishing; and (14) stone crabs were not addressed in the rule or the Texas Blue Crab Management Plan. Any proposed changes developed in the future which detail specific actions will be reviewed through the public hearing process and comments will be solicited before any rule changes are made. The Texas Blue Crab Fishery Management Plan as adopted was based on the best available scientific information. The data upon which the plan was based were collected through an extensive scientific inquiry and analysis. The new section is adopted under the Texas Parks and Wildlife Code, Chapter 66. In addition sec.66.018 provides the Texas Parks and Wildlife Commission with authority to make regulations for the safe use of crab traps and to determine the amount of the fee for crab trap tags upon adoption of a crab management plan and the establishment of a crab advisory committee. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 7, 1992. TRD-9201995 Paul M. Shinkawa Director, Legal Services Texas Parks and Wildlife Department Effective date: February 28, 1992 Proposal publication date: December 20, 1991 For further information, please call: 1-(800)-792-1112, ext. 4863, or (512) 389- 4863 TITLE 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts Chapter 1. Central Administration Practice and Procedure 34 TAC sec.sec.1.1, 1.2, 1.4-1.9 The Comptroller of Public Accounts adopts amendments to sec.sec.1.1, 1.2, and 1. 4-1.9, concerning: intent and scope of rules; construction of rules; representation and participation; initiation of a hearing; extensions of time; content of statement of grounds; preliminary conference; and position letter, without changes to the proposed text as published in the December 24, 1991, issue of the Texas Register (16 TexReg 7630). The purpose of the amendments is to: revise and clarify the language concerning the intent and scope of the rules; revise and clarify the language concerning construction of the rules of practice and procedure; revise and clarify the language concerning representation and participation in administrative hearings; revise and clarify the language concerning the initiation of a hearing. In addition, duplicative material has been deleted; revise and clarify the language concerning extensions of time to make certain filings in an administrative proceeding; revise the language for purposes of clarification and allow a taxpayer to amend the pleadings (statement of grounds), with permission of the administrative law judge, at any time before a comptroller's decision becomes final; revise and clarify the language concerning a preliminary conference between the taxpayer and the agency; and revise and clarify the language concerning the agency's position letter. No comments were received regarding adoption of the amendments. The amendments are adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 5, 1992. TRD-9201862 Martin Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: February 26, 1992 Proposal publication date: December 24, 1991 For further information, please call: (512) 463-4028 34 TAC sec.sec.1.10, 1.11, 1.14-1.16 The Comptroller of Public Accounts adopts amendments to sec.sec.1.10, 1.11, 1. 14-1.16, concerning acceptance or rejection of position letter (motion to dismiss petition or set for hearing); modification of the position letter; notice of setting; and taxpayer's reply to the position letter, without changes to the proposed text as published in the December 24, 1992, issue of the Texas Register (16 TexReg 7633). The purpose of the amendments is to revise and clarify the language concerning: a taxpayer's acceptance or rejection of the agency's position letter; modification of the agency' position letter; the notice of setting in an administrative hearing; the taxpayer's reply to the agency's position letter; and the tax division's response to the taxpayer's reply to the position letter. No comments were received regarding adoption of the amendments. The amendments are adopted under the Tax Code, sec.111.002, which provides the Comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 5, 1992. TRD-9201854 Martin Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: February 26, 1992 Proposal publication date: December 24, 1991 For further information, please call: (512) 463-4028 34 TAC sec.1.12 The Comptroller of Public Accounts adopts an amendment to sec.1.12, concerning motion to dismiss petition or set for hearing, without changes to the proposed text as published in the December 27, 1991, issue of the Texas Register (16 TexReg 7703). The purpose of the amendment is to revise and clarify the language concerning motions to dismiss or set for hearing. In addition, the agency is given the option of selecting an oral hearing when the burden of proof is on the state. No comments were received regarding adoption of the amendment. The amendment is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 5, 1992. TRD-9201853 Martin Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: February 26, 1992 Proposal publication date: December 24, 1991 For further information, please call: (512) 463-4028 34 TAC sec.1.13 The Comptroller of Public Accounts adopts the repeal of sec.1.13, concerning request for more definite or detailed basis of agency action, without changes to the proposed text as published in the December 24, 1991, issue of the Texas Register (16 TexReg 7634). The purpose of the repeal is that present language was deemed unnecessary in light of 34 TAC sec.1.33, concerning discovery. No comments were received regarding adoption of the repeal. The repeal is adopted under the Tax Code, sec.111.002, which provides the Comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 5, 1992. TRD-9201852 Martin Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: February 26, 1992 Proposal publication date: December 24, 1991 For further information, please call: (512) 463-4028 34 TAC sec.sec.1.17, 1.18, 1.20-1.23, 1.25 The Comptroller of Public Accounts adopts amendments to sec.sec.1.17, 1.18, 1. 20-1.23, and 1.25 concerning administrative law judge to hear case; filing of documents; continuances (postponement of hearings); conduct of hearing; rules of evidence; oral evidence, witnesses, and penalty for false statements; and evidence by official notice, without changes to the proposed text as published in the December 24, 1991, issue of the Texas Register (16 TexReg 7635). The purpose of the amendments is to revise and clarify the language concerning: the administrative law judge's being designated to hear contested cases; the filing of documents in contested case; continuances; the conduct of a contested case hearing; the rules of evidence applied during contested case hearings, oral evidence, witnesses, and the penalty for false statements; and to inform the public that in contested cases, official notice may be taken of various matters. No comments were received regarding adoption of the amendments. The amendments are adopted under the Tax Code, sec.111.002, which provides the Comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 5, 1992. TRD-9201851 Martin Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: February 26, 1992 Proposal publication date: December 24, 1991 For further information, please call: (512) 463-4028 34 TAC sec.sec.1.27-1.29, 1.31-1.33, 1.37, 1.39, 1.40 The Comptroller of Public Accounts adopts amendments to sec.sec.1.27-1.29, 1. 31-1.33, 1.37, 1.39, and new sec.1.40, concerning proposed decision; comptroller's decision; motion for rehearing; computation of time; service; discovery; joint hearings; dismissal of case; and burden of proof, without changes to the proposed text as published in the December 24, 1991, issue of the Texas Register (16 TexReg 7636). The purpose of the amendments is to revise and clarify the language concerning: the proposed decision in a contested case; the comptroller's decision in a contested case; the motion for rehearing in a contested case; the computation of time in contested case matters; service of documents in a contested case proceeding; discovery procedures in a contested case proceeding; joining or consolidation hearings; dismissals of contested case proceedings; and concerning burden of proof, which is being repealed simultaneously in order that a substantially revised section dealing with the same subject matter may be adopted. The burden of proof in exemption cases and fraud penalty cases has been changed from "preponderance" of the evidence to "clear and convincing" evidence. No comments were received regarding adoption of the amendments and new section. These amendments and new section are adopted under the Tax Code, sec.111.002, which provides the Comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 5, 1992. TRD-9201849 Martin Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: February 26, 1992 Proposal publication date: December 24, 1991 For further information, please call: (512) 463-4028 34 TAC sec.1.30, sec.1.40 The Comptroller of Public Accounts adopts the repeals of sec.1.30 and sec.1. 40, concerning court suit for refund and burden of proof, without changes to the proposed text as published in the December 24, 1991, issue of the Texas Register (16 TexReg 7637). The purpose of the repeals is to delete unnecessary material. The repeals will enable substantially revised sec.1.40 to be adopted. The repeals are adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administrative and enforcement of the provisions of the Tax Code, Title 2. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 5, 1992. TRD-9201850 Martin Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: February 26, 1992 Proposal publication date: December 24, 1991 For further information, please call: (512) 463-4028 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part IX. Commission on Jail Standards Chapter 273. Medical Services in County Jails 37 TAC sec.273.5 The Texas Commission on Jail Standards adopts an amendment to sec.273.5, concerning the suicide prevention plan, without changes to the proposed text as published in the January 3, 1992, issue of the Texas Register (17 TexReg 38). The amendment incorporates the in-custody suicide reporting procedures of the Texas Code of Criminal Procedure. This section contains recommendations for the contents of the county's written suicide prevention plan. Sheriffs will be provided with guidelines for suicide plans that are in accord with state law and that provide sufficient latitude for county officials to meet local needs. No comments were received regarding adoption of the amendment. The amendment is adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing minimum standards for the construction, equipment, maintenance, and operation of county jails. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 3, 1992. TRD-9201908 Jack E. Crump Executive Director Texas Commission on Jail Standards Effective date: February 27, 1992 Proposal publication date: January 3, 1992 For further information, please call: (512) 463-5505 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part II. Texas Rehabilitation Commission Chapter 113. Comprehensive Medical Rehabilitation 40 TAC sec.sec.113.1-113.5 The Texas Rehabilitation Commission adopts the repeal of sec.sec.113.1-113.5 concerning comprehensive medical rehabilitation, without changes to the proposed text as published in the January 3, 1992, issue of the Texas Register (17 TexReg 39). The repeal will replace Comprehensive Medical Rehabilitation with Comprehensive Rehabilitation Services as authorized by Senate Bill 195, 72nd Legislature. The repeal will give notice that Comprehensive Medical Rehabilitation is being replaced with Comprehensive Rehabilitation Services. No comments were received regarding adoption of the repeal. The repeal is adopted under Senate Bill 195 companion to House Bill 621 and the Texas Human Resources Code, Title 7, which provides the Texas Rehabilitation Commission with the authority to make regulations governing personnel standards, the protection of records and confidential information, the manner and form of filing applications, eligibility, investigation, and determination for hearings, and other regulations necessary to carry out the purposes of this chapter. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 6, 1992. TRD-9201991 Charles W. Schiesser Assistant Commissioner Texas Rehabilitation Commission Effective date: February 28, 1992 Proposal publication date: January 3, 1992 For further information, please call: (512) 483-4051 40 TAC sec.113.1 The Texas Rehabilitation Commission adopts new sec.113.1, concerning comprehensive rehabilitation services, without changes to the proposed text as published in the January 3, 1992, issue of the Texas Register (17 TexReg 39). Comprehensive rehabilitation services is being adopted to comply with Senate Bill 195, 72nd Legislature. Comprehensive rehabilitation services will be operated under the policies and procedures of the Texas Rehabilitation Commission Rehabilitation Services Manual (TRC RSM) Number 08-15 entitled Comprehensive Rehabilitation Services, which is adopted by reference. No comments were received regarding adoption of the new section. The new section is adopted under Senate Bill 195 companion to House Bill 621 and the Texas Human Resources Code, Title 7, which provides the Texas Rehabilitation Commission with the authority to make regulations governing personnel standards, the protection of records and confidential information, the manner and form of filing applications, eligibility, investigation, and determination for hearings, and other regulations necessary to carry out the purposes of this chapter. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 6, 1992. TRD-9201990 Charles W. Schiesser Assistant Commissioner Texas Rehabilitation Commission Effective date: January 28, 1992 Proposal publication date: January 3, 1992 For further information, please call: (512) 483-4051 Chapter 117. Special Rules and Policies 40 TAC sec.117.2 The Texas Rehabilitation Commission adopts the repeal of sec.117.2, concerning sick leave pool so that an updated version of the sick leave pool may be available, without changes to the proposed text as published in the December 27, 1991, issue of the Texas Register (16 TexReg 7723). The Texas Rehabilitation Commission repeals sec.117.2, concerning sick leave pool, as it is being replaced by an updated version approved by the Texas Rehabilitation Commission Board on December 12, 1991. The repeal will give public notice that a new updated version of the sick leave pool will be used by the Texas Rehabilitation Commission. No comments were received regarding adoption of the repeal. The repeal is adopted under the Texas Human Resources Code, Title 7, which provides the Texas Rehabilitation Commission with the authority to make regulations governing personnel standards, the protection of records and confidential information, the manner and form of filing applications, eligibility, investigation, and determination for hearings, and other regulations necessary to carry out the purposes of this chapter. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 6, 1992. TRD-9201989 Charles W. Schiesser Assistant Commissioner Texas Rehabilitation Commission Effective date: February 28, 1992 Proposal publication date: December 27, 1991 For further information, please call: (512) 483-4051 The Texas Rehabilitation Commission adopts new sec.117.2 concerning sick leave pool, without changes to the proposed text as published in the December 27, 1991, issue of the Texas Register (16 TexReg 7723). The Texas Rehabilitation Commission adopts new sec.117.2, concerning sick leave pool, so that an updated version of the sick leave pool is in use, the new policy was approved by the Texas Rehabilitation Commission Board on December 12, 1991. The new sick leave pool will, through public notice, be available to employees of the Texas Rehabilitation Commission, and will comply with the requirements of Texas Civil Statutes, Article 6252-3 (Senate Bill 357, 71st Legislature, 1989). No comments were received regarding adoption of the new section. The new section is adopted under the Texas Human Resources Code, Title 7, which provides the Texas Rehabilitation Commission with the authority to make regulations governing personnel standards, the protection of records and confidential information, the manner and form of filing applications, eligibility, investigation, and determination for hearings, and other regulations necessary to carry out the purposes of this chapter. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 6, 1992. TRD-9201988 Charles W. Schiesser Assistant Commissioner Texas Rehabilitation Commission Effective date: February 28, 1992 Proposal publication date: December 27, 1991 For further information, please call: (512) 483-4051 Part X. Texas Employment Commission Chapter 301. Unemployment Insurance 40 TAC sec.301.13 The Texas Employment Commission adopts an amendment to sec.301.13, concerning commission hearings involving coverage and contributions or reimbursements, without changes to the proposed text as published in the December 27, 1991, issue of the Texas Register (16 TexReg 7723). The amendment provides clarification and the addition of a time limitation on the current procedure allowing motions for reconsideration under the rule being amended. Predictability as to finality of decisions will result. Current practice of allowing motions for reconsideration in tax hearings will be specifically authorized by rule, and there will be a known (30-day) limit for filing such motions. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 5221b, which provide the Texas Employment Commission with the authority to adopt, amend, or rescind rules as it deems necessary for the effective administration of this Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 6, 1992. TRD-9201939 J. Ferris Duhon Legal Counsel Texas Employment Commission Effective date: February 27, 1992 Proposal publication date: December 27, 1991 For further information, please call: (512) 463-2291 Texas Department of Insurance Exempt Filing Notification Pursuant to the Insurance Code, Chapter 5, Subchapter L (Editor's note: As required by the Insurance Code, Article 5.96 and Article 5.97, the Register publishes notices of actions taken by the State Board of Insurance pursuant to Chapter 5, Subchapter L, of the Code. Board action taken under these articles is not subject to the Administrative Procedure and Texas Register Act. These actions become effective 15 days after the date of publication or on a later specified date. The text of the material being adopted will not be published, but may be examined in the offices of the State Board of Insurance, 333 Guadalupe, Austin.) The State Board of Insurance of the Texas Department of Insurance in an open meeting on February 6, 1992, adopted amendments to the rules and regulations governing the Texas Workers Compensation Insurance Facility, new Rule XV, pertaining to the establishment of a market assistance program (MAP). Rule XV pertains to the employers rejected risk fund and states that the facility will conduct a market assistance program market search to determine whether a member company is willing to write the risk on a voluntary basis. The rule also states that the MAP shall only accept applications from a risk unable to secure coverage in the voluntary market and any risk that has received a quote is not eligible. Each member company is required to furnish to the MAP risk consideration information required to review a risk for placement and is also required to notify the MAP of any changes in that information within 90 days. Failure to comply constitutes an administrative violation. Each prospective insurer will be forwarded a copy of the application for review and is required to advise the MAP whether or not the insurer will accept the risk voluntarily. The member company has the right to decline coverage if determination is made that the risk is unacceptable. However, the member company must provide a written response to the MAP. The facility will bind coverage for any risk being reviewed if that review extends past the expiration date of the current policy, or longer than 10 days from the receipt of application for coverage for risks without current coverage. If a voluntary insurer is found after that date, the facility policy will be canceled on a pro-rata basis. The rule indicates that an insurer may not condition acceptance or continuation of a risk on placement of other lines of coverage. The producer of record must be a licensed local recording agent, but is not required to be appointed by the insurer. Producers will be paid a commission or one-time payment, depending on whether or not the insurer has appointed agents. In no case shall the commission rate or one-time payment be less than the commission paid for policies written in the facility. MAP files are subject to the provisions of the Texas Open Records Act (Texas Civil Statutes, Article 6252-17a). The facility shall maintain as confidential all files and related documents. Access to MAP files shall only be allowed to the participant, the participant's agent, or an insurer requested to review the risk. The amended rules are applicable to any market assistance program market search effective on and after 12:01 a.m., March 1, 1992. The board adopted the amended rules under the authority and jurisdiction of the Insurance Code, Articles 5.55 through 5.68-1, 5.76-2 and 5.96. This notification is filed pursuant to the Insurance Code, Article 5.96, which exempts it from the requirements of the Administrative Procedure and Texas Register Act. Issued in Austin, Texas on February 6, 1992. TRD-9201955 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: March 12, 1992 Filed: February 6, 1992 For further information, please call: (512) 463-6327