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 1. ADMINISTRATION Part XIII. Texas Incentive and Productivity Commission Chapter 275. Productivity Bonus Program 1 TAC sec.275.7, sec.275.8 The Texas Incentive and Productivity Commission adopts an amendment to sec.275.7 and new section sec.275.8, concerning the productivity bonus program, without changes to the proposed text as published in the March 6, 1992, issue of the Texas Register (17 TexReg 1713). The commission adopted amendments to these sections to provide clarification of rule revisions and definition of a revision. It also spells out the commission's authority to request additional information of the agencies that submit productivity plans. The amendments will facilitate a clearer definition of the term revision. Additionally, it provides a framework within which the commission may request additional information necessary to compute the amount of savings or other benefits derived from the Plan. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Civil Statutes, Article 6252-29a, sec.1, which provide the Texas Incentive and Productivity Commission with the authority to promulgate rules for its programs. This agency hereby certifies that the sections as adopted have been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on April 10, 1992. TRD-9205024 M. Elaine Powell Executive Director Texas Incentive and Productivity Commission Effective date: May 1, 1992 Proposal publication date: March 6, 1992 For further information, please call: (512) 475-2393 TITLE 4. AGRICULTURE Part III. Texas Feed and Fertilizer Control Service Chapter 65. Commercial Fertilizer Rules General Provisions 4 TAC sec.65.1, sec.65.2 The Texas Feed and Fertilizer Control Service adopts amendments to sec.65.1 and sec.65.2, concerning general provisions, without changes to the proposed text as published in the January 28, 1992, issue of the Texas Register (17 TexReg 604). The amendments provide new term definitions and state standards a material must meet to be a fertilizer. The amendments provide clarification and explanation. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Agriculture Code, sec.63.004, which provides the Texas Feed and Fertilizer Control Service with the authority to adopt rules relating to the distribution of commercial fertilizers that the service finds necessary to carry into full effect the intent and meaning of this chapter including rules defining and establishing standards for commercial fertilizers. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in College Station, Texas, on April 3, 1992. TRD-9204827 George W. Latimer, Jr. Texas State Chemist Texas Feed and Fertilizer Control Service Effective date: April 29, 1992 Proposal publication date: January 28, 1992 For more information, please call: (409) 845-1121 Permitting and Registration 4 TAC sec.65.11 The Texas Feed and Fertilizer Control Service adopts an amendment to sec.65. 11, concerning application for registration, without changes to the proposed text as published in the January 28, 1992, issue of the Texas Register (17 TexReg 605). The amendment will allow the service to request analysis of products if guarantees are not consistent with product purpose. The amendment will enable independent chemical analysis by a qualified chemist to confirm guarantees. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Agriculture Code, sec.63.004, which provides the Texas Feed and Fertilizer Control Service with the authority to adopt rules relating to the distribution of commercial fertilizers that the service finds necessary to carry into full effect the intent and meaning of this chapter including rules defining and establishing standards for commercial fertilizer. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in College Station, Texas, on April 3, 1992. TRD-9204828 George W. Latimer, Jr. Texas State Chemist Texas Feed and Fertilizer Control Service Effective date: April 29, 1992 Proposal publication date: January 28, 1992 For more information, please call: (409) 845-1121 Labeling 4 TAC sec.sec.65.21, 65.22, 65.24, 65.26, 65.30, 65.31 The Texas Feed and Fertilizer Control Service adopts amendments to sec.sec.65.21, 65.22, 65.24, 65.26, 65.30, and 65.31, concerning labeling, without changes to the proposed text as published in the January 28, 1992, issue of the Texas Register (17 TexReg 605-606). The amendments expand and clarify a wide variety of terms coming into use in the fertilizer industry. The amendments expand and clarify terms. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Agriculture Code, sec.63.004, which provides the Texas Feed and Fertilizer Control Service with the authority to adopt rules relating to the distribution of commercial fertilizers that the service finds necessary to carry into full effect the intent and meaning of the chapter including rules defining and establishing standards for commercial fertilizer. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in College Station, Texas, on April 3, 1992. TRD-9204829 George W. Latimer, Jr. Texas State Chemist Texas Feed and Fertilizer Control Service Effective date: April 29, 1992 Proposal publication date: January 28, 1992 Inspection Fees 4 TAC sec.65.41, sec.65.42 The Texas Feed and Fertilizer Control Service adopts amendments to sec.65.41 and sec.65.42 concerning inspection fees, without changes to the proposed text as published in the January 28, 1992, issue of the Texas Register (17 TexReg 606- 607). The amendments ensure registrants who buy fertilizer for their own use understand they are responsible for the tonnage fees. The amendments will provide clarification of the fees. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Agriculture Code, sec.63.004, which provides the Texas Feed and Fertilizer Control Service with the authority to adopt rules relating to the distribution of commercial fertilizers that the service finds necessary to carry into full effect the intent and meaning of this Chapter including rules defining and establishing standards for commercial fertilizer. 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 College Station, Texas on April 3, 1992. TRD-9204830 George W. Latimer, Jr. Texas State Chemist Texas Feed and Fertilizer Control Service Effective date: April 29, 1992 Proposal publication date: January 28, 1992 For further information, please call: (409) 845-1121 Appeals and Rehearings 4 TAC sec.65.85 The Texas Feed and Fertilizer Control Service adopts new sec.65.85 concerning appeals and rehearings, without changes to the proposed text as published in the January 28, 1992, issue of the Texas Register (17 TexReg 607). The new section clarifies the appeals procedure. The new section provides new information on procedures. No comments were received regarding adoption of the new section. The new section is adopted under the Texas Agriculture Code, sec.63.004, which provides the Feed and Fertilizer Control Service with the authority to adopt rules relating to the distribution of commercial fertilizers that the service finds necessary to carry into full effect the intent and meaning of this chapter including rules defining and establishing standards for commercial fertilizers. 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 College Station, Texas, on April 3, 1992. TRD-9204831 George W. Latimer, Jr. Texas State Chemist Texas Feed and Fertilizer Control Service Effective date: April 29, 1992 Proposal publication date: January 28, 1992 For further information, please call: (409) 845-1121 TITLE 7. BANKING AND SECURITIES Part VI. Credit Union Department Chapter 91. Chartering, Operations, Mergers, Liquidations Powers of Credit Unions 7 TAC sec.91.404 The Credit Union Department adopts new sec.91.404, concerning powers of credit unions, with changes to the proposed text as published in the January 28, 1992, issue to the Texas Register (17 TexReg 609). By identifying safe deposit box keys with the routing number, the financial institution from which they were issued can readily be determined. A minor change was made to a definition from that which was contained in the proposed text. This rule will permit a lost key to be returned to the financial institution which issued the key, and permit that financial institution to determine if the key has been either defaced or altered; and if so, report such defacing and/or alteration to the Department of Public Safety for their investigation and records. One comment was received on this rule from the Texas Credit Union League. The comment was concerning the definition of routing number as it applies to a credit union. The Leagues definition, "The routing and transit number issued to the credit union under the auspices of the American Bankers Association and as listed in the American Bankers Association's 'Key to Routing Numbers'" was considered and accepted. The new section is adopted under Texas Civil Statutes, Article 2461-11.07, which provide the Credit Union Commission with the authority to adopt reasonable rules necessary for the administration of the Texas Credit Union Act. sec.91.404. Safe Deposit Box Facilities. (a) General. Texas Civil Statutes, Article 2461-6.10(d), require credit unions to imprint keys issued to safe deposit boxes after September 1, 1992, with the credit union's routing number. In addition, it requires a report to the Department of Public Safety if the routing number is altered or defaced so that the correct routing number is illegible. The purpose of this rule is to clarify the requirements of this article. (b) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Credit union-This term includes all state or federal credit unions that have been assigned a routing number unique to that institution. (2) Routing number-The routing and transit number issued to the credit union under the auspices of the American Bankers Association and as listed in the American Bankers Association's "Key to Routing Numbers." (c) Imprinting requirements. A credit union which has been issued a routing number shall imprint that routing number on safe deposit box keys on either the head of the key or the shank of the key if there is adequate room. The typical locations to be used are indicated in the following instructions and diagram. The imprint can be made anywhere on the key that has the required space available. It can be either on the head or on the shank of the key. When positioning the die on the key, be careful to place the die on the key where it will imprint on a flat surface and not in the area of the key cuts or on any of the shank ridges or grooves. Imprinting in these areas may interfere with the proper working of the key in the lock and may cause damage. In the event these standard areas for the location of the imprint are unavailable, either because of grooves on the key shank or the fact that the head of the key already has names and other numbers imprinted on it, then the credit union may attach to the key a tag imprinted with the routing number. The tag used must be of such a nature as to be secure. Thus, a paper or cardboard tag or a tag affixed with string will not be acceptable. However, any other medium such as plastic or metal which can retain an imprint of a number shall be acceptable. The tag may be attached in any way to assure its affixation to the key. Typically, this will mean inserting the tag or a device to affix the tag through the hole in the head of the key normally used for placing keys on key chains. The tag method shall not be used if there is adequate room on the key itself for imprinting the numbers. There are four standard areas for the location of the imprinted routing number. These include: the head of the key, the shank of the key, and either place on the reverse side of the key. The standard imprint areas are shown as follows. [graphic] (d) Branch designation. A credit union may, but is not required to, add a three- digit branch designation it its routing number. Thus, the main credit union facility should receive the designation "001" and branch facilities should receive numbers consecutively beginning with "002" with successive numbers as needed. However, the credit union may control the branch numbering system used provided that the credit union must maintain a master list of branch designations used for this purpose. The master list should be maintained at the main office of the credit union and shall include the following information: three-digit branch designation and address of facility. The credit union then may imprint safe deposit box keys or tags with the routing number plus three- digit branch designation for full identification of the facility. (e) Report of defaced or altered key. Within 10 days after an officer or employee of a credit union observes that a key used to access a safe deposit box has had the routing number altered or defaced or the tag removed, a report shall be prepared of such incident. The report shall be on a form promulgated by the Credit Union Department in the form of the attached Exhibit A. The report should be submitted to the Department of Public Safety, attention: Criminal Law Enforcement, Box 4087, Austin, Texas 78773-0001. The report should be mailed no later than 10 days after the incident. The credit union should retain one copy of the incident report for a period of three years. Nothing in this rule nor in the Act shall require a credit union to inspect routing numbers imprinted on a key or an attached tag to determine if the number has been altered or defaced. [graphic] (f) Effective date; applicability to existing keys. A credit union must imprint all safe deposit box keys on or after September 1, 1992. Credit unions may begin imprinting keys prior to that date. The imprinting requirement shall apply to all keys currently outstanding as well as to all keys issued after September 1, 1992. However, keys for boxes rented prior to September 1, 1992, need not be imprinted with the routing number unless and until a member presents a safe deposit box key at a credit union for access to a box. Nothing in this rule or the Act shall be construed to require a credit union to provide notice to its safe deposit box users or to otherwise require such members to present their keys for imprinting. However, on the first date after September 1, 1992, that a member presents a key which has not been imprinted, the credit union shall imprint the key with the routing numbers as required by Texas Civil Statutes, Article 2461-6.10(d). (g) Effect of change in routing number. In the event a credit union's routing number is changed as a result of a merger, acquisition, or other change, safe deposit box keys need not be replaced with a new routing number provided that the credit union maintains a master list of the routing numbers used to imprint keys. 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 April 3, 1992. TRD-9204712 John R. Hale Commissioner Credit Union Department Effective date: April 27, 1992 Proposal publication date: January 28, 1992 For further information, please call: (512) 837-9236 Title 16 ECONOMIC REGULATION Part IV. Texas Department of Licensing and Regulation Chapter 60. Texas Commission of Licensing and Regulation Subchapter B. Organization of the Commission of Licensing and Regulation 16 TAC sec.60.25 The Texas Commission of Licensing and Regulation adopts an amendment to sec.60.25, concerning general powers and duties of the commission, without changes to the proposed text as published in the November 22, 1991, issue of the Texas Register (16 TexReg 6733). The amendment is needed to conform to the transfer of elimination of architectural barriers to Texas Civil Statutes, Article 9102. The amendment conforms to the transfer of elimination of architectural barriers to Texas Civil Statutes, Article 9102. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 9100, sec.12, which provide the commission with the authority to adopt rules as necessary for its own procedures. This agency hereby certifies that the section 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 April 8, 1992. TRD-9204885 Jack Garison Acting Executive Director Texas Department of Licensing and Regulation Effective date: April 29, 1992 Proposal publication date: November 22, 1991 For further information, please call: (512) 463-3127 Part VIII. Texas Racing Commission Chapter 303. General Provisions Subchapter B. Powers and Duties of the Commission 16 TAC sec.303.32 The Texas Racing Commission adopts an amendment to sec.303.32, concerning power of entry, without changes to the proposed text as published in the December 27, 1991, issue of the Texas Register (16 TexReg 7691). The amendment is adopted to ensure that the laws relating to pari-mutuel racing are adequately enforced. The amendment clarifies who has the power of entry into a racetrack's place of business. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act and sec.3.03, which states the persons who have power of entry into a racetrack's place of business. 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 April 3, 1992. TRD-9204970 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: May 1, 1992 Proposal publication date: December 27, 1991 For further information, please call: (512) 794-8461 16 TAC sec.303.38 The Texas Racing Commission adopts an amendment to sec.303.38, concerning cooperation with peace officers, without changes to the proposed text as published in the December 27, 1991, issue of the Texas Register (16 TexReg 7692). The amendment is adopted to ensure that the laws of this state relating to racing will be enforced. The amendment clarifies the responsibility of the commission, its employees, and its licensees to cooperate with peace officers and other law enforcement entities. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act and sec.3.11, which requires commission cooperation with peace officers. 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 April 3, 1992. TRD-9204969 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: May 1, 1992 Proposal publication date: December 27, 1991 For further information, please call: (512) 794-8461 Chapter 309. Operation of Racetracks Subchapter B. Horse Racetracks Operations 16 TAC sec.309.194 The Texas Racing Commission adopts an amendment to sec.309.194, concerning helmets, without changes to the proposed text as published in the February 4, 1992, issue of the Texas Register (17 TexReg 898). The amendment is adopted to ensure that pari-mutuel racing is safe for all licensees. The amendment clarifies the requirements for wearing a helmet by individuals riding on horses at pari-mutuel racetracks. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and sec.6.06, which authorize the commission to adopt rules relating to the operation of racetracks. 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 April 3, 1992. TRD-9204965 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: May 1, 1992 Proposal publication date: February 4, 1992 For further information, please call: (512) 794-8461 Chapter 311. Conduct and Duties of Individual Licensees Subchapter A. General Provisions 16 TAC sec.311.16 The Texas Racing Commission adopts new sec.311.16, concerning contraband, without changes to the proposed text as published in the December 27, 1991, issue of the Texas Register (16 TexReg 7694). The section is adopted to ensure that pari-mutuel racing is safe for the participants and is of utmost integrity. The section describes what the commission considers to be contraband and subject to seizure by the commission and law enforcement authorities. No comments were received regarding adoption of the new section. The new section is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with pari- mutuel wagering and for administering the Texas Racing Act and sec.14.03, which authorize the commission to adopt rules prohibiting the illegal influencing of the outcome of a race. 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 April 3, 1992. TRD-9204968 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: May 1, 1992 Proposal publication date: December 27, 1991 For further information, please call: (512) 794-8461 Chapter 313. Officials and Rules of Horse Racing Subchapter A. Officials Duties of Stewards 16 TAC sec.313.21 The Texas Racing Commission adopts an amendment to sec.313.21, concerning eligibility for appointment, without changes to the proposed text as published in the February 4, 1992, issue of the Texas Register (17 TexReg 898). The amendment is adopted to ensure that officials supervising pari-mutual racing are highly qualified. The amendment clarifies the requirements of a written examination for stewards. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and sec.3.07, which authorizes the commission to require annual written examinations for stewards. This agency hereby certifies that the section 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 April 3, 1992. TRD-9204964 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: May 1, 1992 Proposal publication date: February 4, 1992 For more information, please call: (512) 794-8461 Subchapter C. Claiming Races 16 TAC sec.313.303 The Texas Racing Commission adopts an amendment to sec.313.303, concerning effective time of claim, without changes to the proposed text as published in the February 4, 1992, issue of the Texas Register (17 TexReg 900). The amendment is adopted to ensure that part-mutual racing is conducted fairly and with the utmost integrity. The amendment clarifies the time at which a valid claim of a horse takes effect. No comments were received regarding the adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and sec.6.06, which authorizes the commission to adopt rules relating to the operation of racetracks. This agency hereby certifies that the section 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 April 3, 1992. TRD-9204963 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: May 1, 1992 Proposal publication date: February 4, 1992 For further information, please call: (512) 794-8461 16 TAC sec.313.310 The Texas Racing Commission adopts an amendment to sec.313.310, concerning restrictions on claims, with changes to the proposed text as published in the February 4, 1992, issue of the Texas Register (17 TexReg 900). The amendment is adopted to ensure that pari-mutual racing is conducted fairly and with the utmost integrity. The amendment restricts the number of claims an authorized agent may submit for a race. The change from the proposed text corrects a typographical error. No comments were received regarding the adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and sec.6.06, which authorizes the commission to adopt rule relating to the operation of racetracks. sec.313.310 Restrictions on Claims. (a) (No change.) (b) A person may not claim more than one horse in a race nor submit more than one claim for a race. An authorized agent may not submit more than one claim in a race, regardless of the number of persons the agent represents. (c)-(e) (No change.) This agency hereby certifies that the section 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 April 3, 1992. TRD-9204961 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: May 1, 1992 Proposal publication date: February 4, 1992 For further information, please call: (512) 794-8461 Chapter 315. Officials and Rules of Greyhound Racing Subchapter A. Officials Appointment of Officials 16 TAC sec.315.2 The Texas Racing Commission adopts an amendment to sec.315.2, concerning racing judges, without changes to the proposed text as published in the February 4, 1992, issue of the Texas Register (17 TexReg 900). The amendment is adopted to ensure that the officials supervising pari-mutual racing are highly qualified. The amendment clarifies the requirements of a written examination for racing judges. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administrating the Texas Racing Act and sec.3.07, which authorize the commission to require annual written examinations for stewards and racing judges. 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 April 3, 1992. TRD-9204962 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: May 1, 1992 Proposal publication date: February 4, 1992 For further information, please call: (512) 794-8461 Chapter 319. Veterinary Practices and Drug Testing Subchapter A. General Provisions 16 TAC sec.319.11 The Texas Racing Commission adopts an amendment to sec.319.11, concerning powers of inspection, examination, and search and seizure, without changes to the proposed text as published in the December 27, 1991, issue of the Texas Register (16 TexReg 7696). The amendment is adopted to ensure that pari-mutuel racing is safe and humane for the race animals and is conducted in a manner that is fair for the wagerers and that the illegal influencing of the outcome of a race is minimized or eliminated. The amendment clarifies the authority of the commission to conduct a search for any prohibited devices or substances. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with pari- mutuel wagering and for administering the Texas Racing Act and sec.14.03, which authorize the commission to adopt rules prohibiting the illegal influencing of the outcome of a race. 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 April 3, 1992. TRD-9204967 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: May 1, 1992 Proposal publication date: December 27, 1991 For further information, please call: (512) 794-8461 16 TAC sec.319.12 The Texas Racing Commission adopts an amendment to sec.319.12, concerning cooperation required, without changes to the proposed text as published in the December 27, 1991, issue of the Texas Register (16 TexReg 7697). The amendment is adopted to ensure that pari-mutuel racing is safe for the participants and conducted fairly for the benefit of the patrons. The amendment clarifies the duties of the commission employees and licensees to cooperate with law enforcement agencies regarding the investigation or prosecution of a violation of the Texas Racing Act or a commission rule regarding illegal medication or possession of contraband. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with pari- mutuel wagering and for administering the Texas Racing Act and sec.14.03, which authorize the commission to adopt rules prohibiting the illegal influencing of the outcome of a race. 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 April 3, 1992. TRD-9204966 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: May 1, 1992 Proposal publication date: December 27, 1991 For further information, please call: (512) 794-8461 Subchapter D. Drug Testing Testing Procedures 16 TAC sec.319.332 The Texas Racing Commission adopts an amendment to sec.319.332, concerning procedure for obtaining specimens, without changes to the proposed text as published in the February 4, 1992, issue of the Texas Register (17 TexReg 901). The amendment is adopted to ensure that pari-mutuel racing will be conducted with utmost integrity. The amendment clarifies who may witness the collection and documentation of a specimen for testing. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with pari- mutuel wagering and for administering the Texas Racing Act and sec.14.03, which authorize the commission to adopt rules prohibiting the illegal influencing of the outcome of a race. 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 April 3, 1992. TRD-9204960 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: May 1, 1992 Proposal publication date: February 4, 1992 For further information, please call: (512) 794-8461 TITLE 19. EDUCATION Part II. Texas Education Agency Chapter 175. Proprietary Schools and Veterans Education The Texas Education Agency adopts the repeal sec.175.1 and sec.175.101, concerning the proprietary schools advisory commission, without changes to the proposed text as published in the January 31, 1992, issue of the Texas Register (17 TexReg 790). The repeals are necessary to implement statutory changes adopted by the 72nd Legislature in Senate Bill 757 and House Bill 2885. Chapter 175 currently contains provisions related to commercial driving schools, proprietary schools, and veterans education. The chapter is being repealed and adopted as two separate chapters, one specifically addressing proprietary schools and veterans education and another pertaining to driver training schools. No comments were received regarding adoption of the repeals. Subchapter A. Proprietary School Advisory Commission 19 TAC sec.175.1 The repeal is adopted under the Texas Education Code, Title 2, Chapter 32, sec.32.22, which provides authorization for the State Board of Education to adopt policies, regulations, and rules necessary for carrying out the provisions of the Texas Proprietary School 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 March 19, 1992. TRD-9204775 Criss Cloudt Director, Policy Planning and Evaluation Texas Education Agency Effective date: April 28, 1992 Proposal publication date: January 31, 1992 For further information, please call: (512) 463-9701 The Texas Education Agency adopts new sec.sec.175.1, 175.3, and 175.101 concerning veterans approval for proprietary schools, without changes to the proposed text as published in the January 31, 1992, issue of the Texas Register (17 TexReg 790). Old Chapter 175, relating to commercial driving schools, proprietary schools, and veterans education, is being repealed and adopted as two separate chapters in order to implement changes adopted by the 72nd Legislature in Senate Bill 757 and House Bill 2885. New Chapter 175 addresses proprietary schools and veterans education, and new Chapter 176 addresses driver training schools. The new section in Chapter 175 implement changes in statutory requirements regarding the renewal fee structure for proprietary schools and the regulation of truck driving schools which were previously considered to be driving schools. No comments were received regarding adoption of the new section. 19 TAC sec.175.1, sec.175.3 The new sections are adopted under the Texas Education Code, Title 2, Chapter 32, sec.32.22, which provides authorization for the State Board of Education of adopt policies, regulation, and rules necessary for carrying out the provisions of the Texas Proprietary School 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 17, 1992. TRD-9204779 Criss Cloudt Director, Policy Planning and Evaluation Texas Education Agency Effective date: April 28, 1992 Proposal publication date: January 31, 1992 For further information, please call: (512) 463-9701 The Texas Education Agency adopts the repeal of sec.sec.175.10-175.23 and 175. 121-175.129 concerning commercial driving training schools, without changes to the proposed text as published in the February 4, 1992, issue of the Texas Register (17 TexReg 901). The repeals are necessary to implement statutory changes adopted by the 72nd Legislature in Senate Bill 757 and House Bill 2885. Chapter 175 currently contains provisions related to commercial driving schools, proprietary schools, and veterans education. The chapter is being repealed and adopted as two separate chapters, one specifically addressing proprietary schools and veterans education and another pertaining to driving training schools. No comments were received regarding adoption of the repeals. Subchapter B. Commercial Driving training Schools 19 TAC sec.sec.175.10-175.23 repeals are adopted under the Texas Education Code, Title 2, Chapter 32, sec.32.22, which provides authorization for the State Board of Education to adopt policies, regulations, and rules necessary for carrying out the provisions of the Texas Proprietary School 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 March 19, 1992. TRD-9204777 Criss Cloudt Director, Policy Planning and Evaluation Texas Education Agency Effective date: April 28, 1992 Proposal publication date: February 4, 1992 For further information, please call: (512) 463-9701 Subchapter D. Veterans Approval for Proprietary Schools 19 TAC sec.175.101 The repeal is adopted under the Texas Education Code, Title 2, Chapter 32, sec.32.22, which provides authorization for the State Board of Education to adopt policies, regulations, and rules necessary for carrying out the provisions of the Texas Proprietary School 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 March 19, 1992. TRD-9204776 Criss Cloudt Director, Policy Planning and Evaluation Texas Education Agency Effective date: April 28, 1992 Proposal publication date: January 31, 1992 For further information, please call: (512) 463-9701 The new section is adopted under the Texas Education Code, Title 2, Chapter 32, sec.32.22, which provides authorization for the State Board of Education to adopt policies, regulations, and rules necessary for carrying out the provisions of the Texas Proprietary School 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 17, 1992. TRD-9204780 Criss Cloudt Director, Policy Planning and Evaluation Texas Education Agency Effective date: April 28, 1992 Proposal publication date: January 31, 1992 For further information, please call: (512) 463-9701 Subchapter E. Minimum Standards for Operation of Texas Proprietary Schools 19 TAC sec.sec.175.121-175.129 The repeals are adopted under the Texas Education Code, Title 2, Chapter 32, sec.32.22, which provide authorization for the State Board of Education to adopt policies, regulations, and rules necessary for carrying out the provisions of the Texas Proprietary School 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 March 19, 1992. TRD-9204778 Criss Cloudt Director, Policy Planning and Evaluation Texas Education Agency Effective date: April 28, 1992 Proposal publication date: February 4, 1992 For further information, please call: (512) 463-9701 19 TAC sec.sec.175.121-175.130 The Texas Education Agency adopts new sec.sec.175.121-175.130 concerning minimum standards for operation of Texas proprietary schools, without changes to the proposed text as published in the February 4, 1992, issue of the Texas Register (17 TexReg 902). Old Chapter 175, relating to commercial driving schools, proprietary schools, and veterans education, is being repealed and adopted as two separate chapters in order to implement changes adopted by the 72nd Legislature in Senate Bill 757 and House Bill 2885. New Chapter 175 addresses proprietary schools and veterans education, and new Chapter 176 addresses driver training schools. The new sections in Chapter 175 implement changes in statutory requirements regarding the renewal fee structure for proprietary schools and the regulation of truck driving schools which were previously considered to be driving schools. No comments were received regarding adoption of the new sections. The new sections are adopted under the Texas Education Code, Title 2, Chapter 32, sec.32.22, which provides authorization for the State Board of Education to adopt policies, regulations, and rules necessary for carrying out the provisions of the Texas Proprietary School 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 17, 1992. TRD-9204781 Criss Cloudt Director, Policy Planning and Evaluation Texas Education Agency Effective date: April 28, 1992 Proposal publication date: February 4, 1992 For further information, please call: (512) 463-9701 Chapter 176. Driver Training School Advisory Committee The Texas Education Agency adopts new sec.176.1 and sec. sec.176.10-176.34, concerning driver training schools, without changes to the proposed text as published in the January 31, 1992, issue of the Texas Register (17 TexReg 792). The new sections implement changes in statutory requirements regarding regulation of driver training schools adopted by the 72nd Legislature in Senate Bill 757. Chapter 176 now addresses provisions related to driver training schools which were formerly included in Chapter 175, relating to commercial driving schools, proprietary schools, and veterans education. The new section provide driving schools with a separate regulatory structure that covers requirements for school licensure, extension location registration, employee responsibility, administrative and instructional staff approval, course approvals, records, school policies, facilities and equipment, and advertising. During the November 14, 1991, Driving Training School Advisory Commission meeting, Driver Training Associates, Houston, spoke in favor of amending sec.176. 32, relating to names and advertising. The recommendation would require extension operators to include five elements of identification in advertisements as opposed to the two required in the proposed rule. The agency does not support this recommendation because it believes two identification elements are adequate. Comments in support of sec.176.32 as proposed were received from the following driving schools: Affiliated Driving School, Marshall; Mike Borden, Austin; Deal's Driving Course, Abilene; Princeton Independent School District, Princeton; Robertson Driving School, Waxahachie; and USA Training Company, Inc., Austin. Subchapter A. Driver Training School Advisory Committee 19 TAC sec.176.1 new section is adopted under Senate Bill 757 as passed by the 72nd Legislature, Regular Session, which provides the State Board of Education with the authority to adopt rules necessary to carry out the Texas Driver and Traffic Safety Education 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 17, 1992. TRD-9204782 Criss Cloudt Director, Policy Planning and Evaluation Texas Education Agency Effective date: April 28, 1992 Proposal publication date: January 31, 1992 For further information, please call: (512) 463-9701 Subchapter B. Minimum Standards for Operation of Texas Driver Training Schools 19 TAC sec.sec.176.10-176.34 The new sections are adopted under Senate Bill 757 as passed by the 72nd Legislature, Regular Session, which provides the State Board of Education with the authority to adopt rules necessary to carry out the Texas Driver and Traffic Safety Education 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 17, 1992. TRD-9204783 Criss Cloudt Director, Policy Planning and Evaluation Texas Education Agency Effective date: April 28, 1992 Proposal publication date: January 31, 1992 For further information, please call: (512) 463-9701 Title 22. EXAMINING BOARDS Part XIX. Polygraph Examiners Board Chapter 395. Code of Operating Procedures of Polygraph Examiners 22 TAC sec.395.17 The Polygraph Examiners Board adopts new sec.395.17, concerning written authorization to inspect polygraph records for the ultimate benefit of the public, without changes to the proposed text as published in the February 7, 1992, issued of the Texas Register (17 TexReg 1005). The polygraph industry will be more closely regulated in areas that the board determines to be critical. This section concerns the written authorization for the board to inspect all pertinent materials filed by polygraph examiners licensed in the State of Texas. No comments were received regarding adoption of the new section. The new section is adopted under Texas Civil Statues, Article 4413(29cc), sec.6(a), which provide the Polygraph Examiners Board with the authority to issue regulations consistent with the provisions of the Texas Polygraph Examiners Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on April 9, 1992. TRD-9204992 Bryan M. Perot Executive Officer Polygraph Examiners Board Effective date: May 1, 1992 Proposal publication date: February 7, 1992 For more information, please call: (512) 465-2058 TITLE 28. INSURANCE Part I. Texas Department of Insurance Chapter 1. General Administration Subchapter E. Notice of Toll-free Telephone Numbers and Procedures for Obtaining Information and Filing Complaints 28 TAC sec.1.601 The State Board of Insurance of the Texas Department of Insurance adopts an amendment to sec.1.601, concerning the notice of policyholder and complaint procedures required by the Insurance Code, Article 1.35, and concerning the toll-free telephone numbers and disclosures required of insurers in Articles 1. 35D and 21.71, respectively. This adoption combines into one section provisions of two different proposed sections previously published independently, each receiving extensive comment during the 30-day period for public comment, and each the subject of an independent public hearing. Changes to the two provisions as previously published were made in response to comments, both before and during public hearings on the proposals, and none of the changes results in the introduction of new subject matter or persons in addition to those covered in the proposals as originally published. This adoption includes several changes to the proposed amendment to sec.1.601 as published in the January 14, 1992, issue of the Texas Register (17 TexReg 298). The adoption also includes numerous changes to provisions originally proposed and published as new sec.1.602, in the November 29, 1991, issue of the Texas Register(16 TexReg 6902). During the period for public comment for proposed new sec.1.602, a public hearing was requested and convened January 14, 1992, as Docket Number 1854. As a result of that hearing, the board directed that the notice requirements resulting from the Insurance Code, Articles 21.71, and 1.35D, be integrated into a single combined regulation. The period for public comment on proposed amendment to sec.1.601 began running the same day. During that public comment period, a public hearing was requested, and convened on February 19, 1992 as Docket Number 1862. As a result of the many comments received during each of the respective comment periods and the hearings pursuant to Dockets 1854 and 1862, the board decided to both amend and combine the provisions originally proposed as amendment to sec.1.601 and as new sec.1.602 to ensure that sec.1.601 provides means by which insurers and health maintenance organizations may comply with the statutory notice requirements of the Insurance Code, Article 21.71, and the notice requirements of Article 1.35 and Article 1.35D. The adopted amendment to sec.1.601, comprised essentially of proposed amendment to sec.1.601 as published in the January 14, 1992, issue of the Texas Rgister (17 TexReg 298) and proposed new sec.1.602 as published in the November 29, 1991, issue of the Texas Register (16 TexReg 6902) reflect consideration of the many comments received up to and including the February 19, 1992, hearing. The only portion of recommended amendments considered at the February 19 hearing representing new subject matter is recommended sec.1.601(c)(5), on which the board did not take final official action as part of these adopted amendments. This paragraph relates to the maintenance of certain records by an insurer seeking an exception to the insurer's toll-free telephone number requirements of Article 21.71, and will be published for comment at a future date. The amendments and new subsections are necessary to assure uniform, consumer- oriented compliance by insurers and health maintenance organizations with the notice requirements of the Insurance Code, Articles 1.35, 1.35D and 21. 71. Article 1.35 requires a notice of policyholder complaint procedures to address the possibility of a dispute concerning a policyholder's claim or premium; the notice must include the address of the department. The content and format of this notice requirement is in existing sec.1.601. Article 1.35D requires insurers to include with each policy an information bulletin providing the department's toll-free telephone number and describing the services offered through this number. Article 21.71 requires certain insurers to maintain a toll- free telephone number for information and complaints, and to print this number on the policy. As a result of public comment and two public hearings, the three statutorily- required notices have been combined into a single notice: the complaint notice in existing sec.1.601, the Texas Department of Insurance toll-free telephone number notice proposed as an amendment to sec.1.601, and the insurer's toll-free telephone number notice originally proposed as new sec.1.602. The board has determined that by combining the three notices into a single notice this necessary consumer information is presented in the most cost-efficient manner for companies and in a form that is most accessible and useful to policyholders. The board believes it is necessary to promulgate standards of content, format, and placement of these statutorily-required notices in order to ensure maximum accessibility of this information to policyholders, and thereby to make insurance companies more accountable to their policyholders. Adopted amendments to sec.1.601 provide the means by which insurers and health maintenance organizations may provide notice to policyholders, certificate holders, annuitants, and enrollees of the toll-free telephone numbers of the insurer and the Texas Department of Insurance, and of procedures for obtaining information and filing complaints with the agent, the insurer or HMO, and/or the department. Prior to adoption of these amendments, sec.1.601 set out the content and format requirements of the notice of policyholder claim or premium disputes under the Insurance Code, Article 1.35. The adopted amendments enlarge the scope of the section to include not only the content and format of that notice, but also the content and format of the department's toll-free telephone number as required under Article 1.35D, and the insurer's toll-free telephone number required under Article 21.71. Captions for Subchapter E and for sec.1.601 are restyled to reflect the expansion of the notice to include toll-free telephone numbers and procedures for obtaining information from the agent, the insurer or HMO, and/or the department. Adopted subsection (a) outlines the purpose and applicability of the expanded notice and the requirements for the placement, format, and wording of the notice in both English and Spanish. The notice is contained in a single- page, two-column format with the left column in English and the right column in Spanish. Adopted subsection (b) provides for new notice requirements, including the specification of which policies, certificates, and evidences of coverage must contain the Spanish language translation, the type size for text, and any optional information that is permitted to be included in the notice. The subsection further provides instructions pertaining to each of the eight designated parts of the notice and identifies those parts which are required for all lines of insurance, and those which are optional, including that the Spanish language translation is required only for personal automobile, homeowners, and life, accident and health policies, certificates and evidences of coverage. Adopted subsection (b) also provides in paragraph (3) for exemptions from the insurer's toll-free telephone number requirements. Adopted subsection (c) provides specific requirements and procedures for claiming exceptions to the notice requirements for the insurer's toll-free telephone number, the duration of the exception, and the deadline for submitting required information to the department. Adopted subsection (c) also provides that policy and form filings submitted to the department for information or review must include a statement if the exception to the insurer's toll-free telephone number requirements has been granted and is being claimed, or a certification by an appropriate company representative in instances where no current exception has been granted. Adopted subsection (d) specifies that the required notice is to be provided for policies in force prior to May 1, 1992, and renewed on or after May 1, 1992, as well as providing the method of delivery for such notice. Adopted subsection (e) provides the authorization and limitations with respect to continued use of existing form inventories, including a provision that such forms may not be used after September 1, 1992, and further providing that continued use of such forms must be accompanied by compliance with the substantive notice requirements of sec.1.601 as adopted. Adopted subsection (f) provides that policies, bonds, annuity contracts, and certificates subject to the notice requirements of the section which were filed for review or approval prior to May 1, 1992, may be delivered or issued with the required notice without subsequent refiling for review or approval. Adopted subsection (g) provides that when an individual is added to a group policy or plan issued, delivered, or renewed on or after May 1, 1992, the required notice to the individual must be included as the first, second, or third page of the certificate, annuity, or evidence of coverage. Comments on provisions included as adopted amendments to the section were received from 77 sources during the two respective comment periods and in connection with public hearings under Docket Number 1854 and Docket Number 1862. With respect to the adopted amendments relating to the insurer's toll-free telephone number notice requirements, comments from 27 sources were received during the public comment period following publication of those provisions as proposed new sec.1.602. The comments generally recognized the goals and purposes of such notice requirement and agreed generally with the social policy rationale supporting it. However, the commenters also recommended changes to particular subsections for the stated purposes of making the rule more fair, equitable, effective, cost- effective, or consistent with the underlying statutory intent and stated statutory purpose. For these reasons, most of the comments stated one or more objections against the section as proposed and published. Those making comments in favor of the provisions originally published as proposed new sec.1.602 included New York Life Insurance Company and the Office of Public Insurance Counsel. Those making comments against proposed sec.1.602 as published included Allstate Life Insurance Company, American Council of Life Insurers, American Family Life Assurance Company, Equitable Life Insurance Company of Iowa, Dallas National Life Insurance Company, First Colony Life Insurance Company, National Health Insurance Company, New York Life Insurance Company, Northwestern Mutual Life Insurance Company, Old American Insurance Company, Paul Revere Life Insurance Company, PennCorp Financial, Provident American Insurance Company, State Farm Insurance Company, Texas Legal Reserve Officials Association, Texas Life Insurance Association, Transport Life Insurance Company, USG Annuity and Life Company, and Variable Annuity Life Insurance Company. Those making comments neither for nor against proposed sec.1. 602 as published included American General Life and Accident Insurance Company, American National Insurance Company, Association Administrators and Consultants, Plan Administrators, Texas Health Maintenance Organization Association, and Texas Lawyers' Insurance Exchange. With respect to the same proposal, eight additional sets of comments were received after the time period for public comment had run, but before the public hearing pursuant to Docket Number 1854 on proposed sec.1.602 was recessed. Those making comments during this time interval against proposed sec.1.602 as published included American General Life Insurance Company, Bankers Life and Casualty Company, The New England, and Principal Financial Group. Those making comments neither for nor against the proposed section during the same time period included Best Life Assurance of California, State Farm Insurance Company, Texas Land Title Association, Title Resources Guaranty Company, and Tucker & Clark, Inc. With respect to provisions originally published January 14, 1992, as proposed amendment to sec.1.601, comments were received from seven sources. Those commenting for the proposed amendment included the Office of Public Insurance Counsel. Those commenting against the proposed amendment included John Alden Life Insurance Company, Allstate Life Insurance Company, Durham Life Insurance Company, The New England, and Texas Legal Reserve Officials Association. Those commenting neither for nor against the proposed amendments included the Coalition of Texas Sureties. Comments on the adopted amendments in the integrated or combined format were received from 37 sources between January 14, 1992, and February 19, 1992. Comments in favor of the integrated format were received from the Office of Public Insurance Counsel. Those commenting against the integrated amendments included Allstate Life Insurance, American Council of Life Insurers, Bankers Commercial Insurance Company, Combined Underwriters, Dallas General Life Insurance Company, Equitable Life Insurance Company of Iowa, First Life, Garden State Life Insurance Company, General Security Life Insurance Company, Great Southern Life Insurance Company, Kansas City Life Insurance Company, Life Insurance Company of the Southwest, Lifeline Underwriters, Midland National Life Insurance Company, Mission Life Insurance Company, Mutual Protective/Medico Life, National Health Insurance Company, North American Company, Northwestern Mutual Life Insurance Company, Safeco Life Insurance Company, Security Benefit Life Insurance Company, Southwestern Life Insurance Company, State National Life Insurance Company, Statesman National Life Insurance Company, Texas Legal Reserve Officials Association, Texas Life Insurance Association, Tower Life Insurance Company, Union Bankers Insurance Company, USAA, and one individual. Those commenting neither for nor against the integrated amendments included Mass Mutual, Provident American Insurance Company, State Farm Insurance Company, Texas AFL-CIO, Texas Health Maintenance Organization Association, and Transport Life Insurance Company. Several of the comments received on the adopted amendments during the two comment periods and as a result of the two public hearings touched on common themes and raised recurring issues. Comments on the adopted amendments are classified on the basis of major issues, and are summarized with respect to all comment periods, followed by department responses to each comment. Spanish language requirement. Comments. The most frequent objection raised by commenters was to the requirement that the notice required in sec.1.601 as amended appear in both English and Spanish. A total of 53 commenters took issue with the Spanish language requirement. A total of 21 of these commenters complained that the Spanish requirement misleads prospective callers who speak only Spanish, since the companies represented by these commenters do not employ anyone who is fluent in Spanish. They urged that the inclusion of the Spanish translation creates unrealistic expectations that someone at the company will be able to speak Spanish, thus creating potential service problems, unnecessary confusion and unfulfilled expectations. Three commenters objected that inclusion of the Spanish requirement has the effect of establishing staffing and hiring practices of companies, with one of those three suggesting that a bilingual telephone operator would not be enough, and that the entire company would have to become bilingually oriented. A total of 16 commenters opposed inclusion of the Spanish translation on the grounds that because all policies and applications are written in English the notice should also be in English only, or, alternatively, that the requirement is unnecessary because all prospective insureds must be able to read English in order to read and understand the policy, application, and questionnaires associated with the products they offer. Five commenters objected to the Spanish language requirement on grounds that Spanish is neither the principal nor declared language of Texas; they additionally pointed out that the notice is not required in the native language of their many policyholders who are of Chinese, Vietnamese, Arabic, Polish, Japanese, and Turkish origin. Four commenters objected to the inclusion of the Spanish language translation on grounds that all their advertising, solicitation, and marketing efforts are in English, and are aimed at the English-speaking market only; or, alternatively, that policies purchased through direct response marketing where all efforts are in English only should not be required to have the notice in Spanish. A total of 14 commenters stated explicitly that the department lacks the statutory authority to require the notice to be printed in Spanish. Seven of those 14 addressed the Spanish requirement in the combined rule; four addressed proposed sec.1.602 as originally published; and three addressed the amendment to sec.1.601 as originally published. Another commenter addressing only the notice requirement resulting from Article 1.35D, Insurance Code, argued that the board only has the authority to adopt recommended English language notice provisions because no explicit rulemaking authority is granted in Article 1.35D. A total of 11 commenters asserted that the requirement to print in two languages is too expensive or inequitable in light of costs already expended for compliance efforts, and/or that the publication in two languages will cause administrative complications. An additional five commenters argued that such additional expense is unfair in light of costs incurred complying with the August 13, 1991, Commissioner's Bulletin governing interim compliance requirements under Article 21.71. Seven commenters objected to the incorporation of any other language into the contract because of the potential difficulty in translating policy provisions and possible miscommunications, as well as the possible interpretation of the Spanish translation of the notice as an offer to translate any portion of the contract into Spanish, which, in turn could open the door to actions under the reasonable expectations doctrine, the Deceptive Trade Practices Act, or other legal contract theories. Three commenters strongly objected to the inclusion of the Spanish language requirement without specifying any particular reason for the objection. Three commenters, addressing only the proposed amendments to sec.1.601 as published, urged that if the department is going to require a Spanish translation for the notice, it should provide promulgated translated language for such notice. Three commenters argued that the Spanish language requirement provides no benefit to policyholders, that it is confusing and creates more problems than it solves, and that there is no evidence of consumer demand for such Spanish translation. Two commenters addressing only proposed new sec.1.602 as published objected to imposing the Spanish language requirement on certain products marketed to professional associations such as the Texas Society of CPAs and the American Bar Association or State Bar of Texas. Two other commenters urged that the Spanish language requirement should not be applied to title insurance policies. Two commenters recommended that rather than require the Spanish translation, a notice be provided to policyholders to advise that the notice will be provided in a Spanish translation upon request. Two commenters objected to the Spanish requirement in proposed sec.1.602 on grounds that it takes up too much space and that there is too much clutter on the front of the policy. One commenter responding only to sec.1.602 as originally published complained that parts of the Spanish translation were inaccurate and grammatically incorrect. Another commenter addressing the combined proposal indicated that the company is uncomfortable sending out notices which its employees cannot read and for which they have to rely on the accuracy of the department's translation. One commenter addressing only proposed new sec.1.602 argued that the Spanish requirement comprises a new substantive provision and cannot be characterized purely as a manner of appearance under the Insurance Code, Article 21.71(d). One commenter urged that inclusion of the Spanish translation requirement is contrary to public interest. One commenter noted that, with respect to its company, the notice serves no useful purpose because persons who cannot speak, understand or read English are ineligible for coverage based on company underwriting guidelines. One commenter objected to inclusion of the Spanish translation because its printing equipment cannot print the Spanish accent marks. Department response comments on Spanish language requirement.With respect to the issue of requiring a Spanish translation of the notice, the department responds that requiring the notice in Spanish does not create an affirmative duty on the part of insurers to employ personnel fluent in Spanish to take such calls. However, the department also observes that any company that is marketing a product to policyholders who can speak only Spanish should be providing Spanish translation services to those policyholders anyway as a matter of good business practice. For this reason, with respect to those policyholders the notice should result neither in unrealistic expectations nor in service problems or difficulties. The department further responds that the board has the requisite statutory authority to require the notice to be printed in Spanish as well as in English. The Insurance Code, Article 1.35, provides that the board shall promulgate the proper wording for the written notice required under that statute. Article 21. 71(d) provides that the board has authority to govern the manner of appearance with respect to the insurer's toll-free telephone number. Article 1.04, Insurance Code, authorizes the board to determine rules in accordance with the laws of this state for uniform application. Article 1.35D(f) requires each insurer to include with policies it delivers, issues or renews in this state an information bulletin that provides the department's toll-free telephone number and describes the services offered through the number. Because the department has responsibility for providing the services, it is necessary that the department develop the format and content for the bulletin for purposes of setting standards and assuring regulatory uniformity across all lines of insurance and among issuers of coverage, so that all covered persons are receiving the same information, in the same manner. Uniform regulation is important to both consumers and issuers of coverage, as is knowledge about standards in advance of their enforcement. The department recommends and the board finds it is consistent with and in the best interest of the public to have such standards and for personal lines of insurance to include a Spanish translation as part of such standards. Regarding expense and practicality issues raised in connection with the Spanish translation, the department responds that the notice required under the adopted amendments represents a cost-efficient, convenient, and informative method for providing consumers with needed information, while at the same time reflecting due consideration of all comments received. The notice embraces the disclosure requirements of three separate statutes printed in two different languages on a single page. The notice as adopted is flexible, in that it accommodates many different printing methods and duplication processes. No special punctuation marks are required for the Spanish translation. Concerns about accuracy, grammatical integrity, and other translational details also have been addressed in the notice translation as adopted. With respect to comments objecting to the Spanish translation because of contract law concerns, the department responds that the last item on the notice states clearly that the notice is solely for the purpose of providing information and is not a part or condition of the contract itself. With respect to comments requesting or recommending the Spanish translation not apply to certain types of products or lines of insurance, the department responds that the adopted amendments require the Spanish translation of each item found in a company's notice only with respect to personal lines of insurance: personal automobile, homeowners, and life, accident and health insurance coverages. Notice requirements for certificates issued under group policies. Comments. A total of 11 comments addressed the issue of notice requirements for certificates issued under group policies. Five commenters addressed only the issue of such requirements under proposed new sec.1.602 as published. Three commenters addressed the larger issue of such requirements under the combined adopted amendments to sec.1.601. All 11 commenters, to varying degrees, raised the issue of the board's authority to require certificates of insurance issued under group policies to contain the notice disclosures. Two additional comments on this issue stated that if the board is going to except certain certificates under group policies from the disclosure requirement, additional exceptions should apply to policies issued to labor unions, creditors, any association of the United States government or any subdivision thereof, or trustees of a fund established by two or more employers in the same industry or by one or more labor unions, and to a trustee of the employer's retirement plan. Department response to comments on notice requirements for certificates. The board responds that the department has a longstanding policy that certificate holders have the same rights, privileges, opportunities, and protection that is afforded policyholders in instances where such a result is consistent with the intent of the enactment being implemented and there is no compelling reason why certificate holders should be treated differently from individual policyholders. The department further responds that with respect to complaint notice requirements, all certificates are currently required to carry the notice language prescribed by sec.1.601 as it existed prior to the adopted amendments. This requirement has been in effect for over seven years dating from the inception of the rule adopted to implement the Insurance Code, Article 1.35. Further, the board notes that, in response to comments received in connection with the publication of proposed sec.1.602 and at hearing, the adopted amendments exempt insurers from printing the Article 21.71 required disclosure on certificates of insurance issued under group policies where the insurer does not administer the policy or determine questions of coverage, or if the policyholder is an employer or labor union. In further response to the additional exceptions requested, the department disagrees with further exceptions, because if such requests were granted, exceptions to notice requirements for certificates would swallow up the portion of the rule requiring certificates to carry such notice, thereby rendering it almost meaningless. Use of existing forms, and effective date. Comments. A total of 15 comments addressed the issue of using existing policy and certificate forms in conformity with interim compliance measures, and the accompanying issue of the effective date of compliance with the adopted amendments. Thirteen of those 15 commenters either complained that both of the proposals published in the Texas Register failed to provide adequate time for insurers to print new forms that would fully comply if the proposals were adopted as published, or, alternatively, requested that they be permitted to use existing form inventories printed in response to interim compliance procedures for a period of time after the effective date. Many even suggested alternative effective dates. Two commenters complained similarly about draft proposals resulting from the public hearing under Docket Number 1854, with one suggesting an effective date no sooner than 60 days following final official action by the board. Department response. In response to these concerns, the board provides in the adopted amendments for an effective date of May 1, 1992, and permits use of existing inventories until exhausted, but no later than September 1, 1992. Multiple notices. Comments. A total of eight commenters during the process leading up to the adoption of the amendment to sec.1.601 questioned the need for separate rules and notices addressing the toll-free telephone numbers, and suggested with varying degrees of specificity revising the current regulation for complaint notice procedures in sec.1.601 to include both the department's and the insurer's toll-free telephone numbers. Comments to proposals published as an amendment to sec.1.601 and as new sec.1.602, as well as comments received under Docket Number 1854, focused on the length of the notice and the need to streamline, simplify and shorten it. Department response. The department agrees with many of these comments and the adopted one-page notice therefore embraces the notice requirements of all three statutes in both English and Spanish, and represents a comprehensive effort to achieve a simple, short, well stated disclosure that will benefit consumers and insurers. Comments and response on notice placement. A total of six comments addressed placement of the notice, most of which focused on space restrictions, printing process limitations, and related factors. The most recurrent suggestion or request was that the notice be permitted on the first, second, or third page of the policy. The department responds that because the notice is an important consumer disclosure, it is imperative that it be prominently and conspicuously displayed. Since the adopted notice is a full-page disclosure, the department finds that including the notice as the first, second, or third page of the document it accompanies permits companies the necessary flexibility in complying, while retaining the integrity of notice prominence and visibility. For this reason the adopted amendments permit the required notice to be provided as the first, second, or third page of the document in which it is included. Comments and response on text prefatory to the notice. A total of four commenters made specific comments on the prohibition of prefatory text in the insurer's toll-free number notice, published as proposed new sec.1.602. One comment emphasized the importance of having the agent as a first contact in responding to inquiries for personal insurance lines. Three other commenters also requested the prohibition be removed so that insurers who utilize the services of third party administrators will be able to list the TPA number before the insurer's number. The commenters emphasized that the TPA has the data to immediately reply to complaints or clarify questions of insureds in such situations, but the insurer may not. The department agrees with most of these comments and therefore adopts a consolidated notice that removes this prohibition, and provides the opportunity to place the name and telephone number of an agent or TPA just before the insurer's toll-free telephone number. Notice delivery. Comments. Three commenters requested that delivery of the notice required by Article 21.71 for policies in force prior to the effective date of the adopted amendments to the section and renewed on or after the effective date of the section as adopted not be limited to delivery by mail only, but that personal delivery also be permitted. Two commenters suggested the word "affixed" be used instead of the word "stapled" when addressing the means by which the notice accompany the document with which it is associated. Another commenter objected to the same part of proposed sec.1.602 as published, which the commenter interpreted as requiring a notice of the toll-free number to go out with the premium notice, renewal notice, or other communication of renewal coverage for each renewal. Department response to comments on notice delivery. The department agrees with these comments and notes that the amendments as adopted provide for such delivery by mail or in person. The department further notes that the adopted amendments utilize the word "attach" in the notice for the item directing covered persons to keep the notice and their policy together, and finally that the adopted amendments require the notice in question to be delivered only with the first premium notice or other communication indicating renewal of coverage after May 1, 1992. Comments and response regarding identification of divisions to which exceptions should be directed. Three comments were received with respect to identification of divisions within the department which will process claims for exception from the insurer toll-free telephone number requirements. The first was received during the comment period for proposed new sec.1.602 as published and suggested that such divisions be identified. The second two were received following the convening of the hearing under Docket Number 1854 and suggested that such identification should not include divisional mail codes because of the frequency of changes to such codes. The department agrees with the comments that the identification of such divisions, including the mail codes, is helpful in the timely filing, receipt, and processing of such claims, and for that reason the amendments as adopted include this information. Comment and response on "gross initial premium receipts." Two commenters urged, both during the comment period for proposed new sec.1.602 and after the convening of the hearing on such proposal under Docket Number 1854, that the term "gross initial premium receipts" be defined, essentially as the dollar amount collected at the time a particular insurance product is sold. The department responds that comments made on the record in Docket Number 1854 in connection with contract definitions of "gross initial premium" indicate lack of a uniform definition utilized by and among insurers for that term in those contracts. For this reason, a definition of such term is not included in the adopted amendments, and insurers are bound to apply the definition of such term as used in their contracts for purposes of claiming an exception to Article 21. 71 requirements. Comment and response on abuse of insurer's toll-free number. One commenter complained that certain agents were using its toll-free telephone number for their own normal business activities, and requested an amendment to permit the company to preclude agents from using the number for these purposes. The department responds that the underlying statutory intent, as well as the intent of the adopted amendments addressing the insurer's toll-free number, is clearly that the number is intended to be used by covered persons only, not agents in the ordinary conduct of business activities. For this reason the department finds that even without the requested amendment the insurer may use appropriate means to preclude or dissuade agents from making improper use of the number. Comments on cost of compliance and response. One commenter questioned the cost of compliance with proposed sec.1.602 as originally published, contending that the proposed cost would exceed the $10,000 upper level constraint recited in the public benefit/cost note for the proposed section. The department responds that the $10,000 figure in the public benefit/cost note was the result of having consulted with a number of companies subject to the compliance requirements. The department finds it unnecessary to change the figure because no other comments were received about the figure. Also the commenter who questioned the upper limit of compliance cost failed to provide any alternative figure or information relating to what the higher figure might be. Comment and response on retroactive application. One commenter objected to what it perceived in the provisions of sec.1.602 as published as retroactive application of the rule. The department responds that it was never the intention to retroactively apply the provisions of the adopted amendments relating to the insurer's toll-free telephone requirements. The adopted amendments relating to the insurer's toll-free number take effect May 1, 1992. For notices which have gone out prior to that date in compliance with current regulations and/or departmental directives, no new notice on the same subject matter is required. However such issuers are required under the rule to supplement those notices with one informing the covered person that he or she may contact the department through its toll-free telephone number, including types of information available through the number. Such requirements are set out in sec.1.601(b)(6), as adopted. Comment and response on republication. One commenter suggested the consolidation of published proposals for new sec.1.602 and amended sec.1.601 may need to be published for an additional period of public comment. The board responds that the adopted amendments combine two provisions previously published, each subject to extensive comment during the 30-day period for public comment, and each subject to a public hearing. The changes in the adopted amendments to the two proposals as previously published were made in response to comments, and none of the changes cover new subject matter or persons in addition to those previously covered in the rules as originally published. The only portion of recommended amendments representing new subject matter in regulation of the insurer toll- free telephone number was recommended sec.1.601(c)(5), on which the board did not take final official action as part of these adopted amendments, determining instead to publish that provision for 30 days of comment. Comment and response on HMOs. One commenter suggested that, even though HMOs are to comply with providing the department's toll-free telephone number to enrollees, the first sentence in sec.1.601(a)(1) as adopted should reflect that HMOs are not referenced in the Insurance Code, Article 1.35D. The department agrees, and the adopted amendments indicate that HMOs are not expressly referred to in Article 1.35D. Comment and response on clarification of "toll free telephone number. " One commenter observed that the combined amendments need to clarify that "toll-free number" means any number that can be utilized with no resulting charge to the caller. The department agrees, and the adopted amendments make it clear that for purposes of the rule a toll-free telephone number is one which can be used by any covered person to obtain information or make a complaint without incurring long-distance calling expenses. The amendment is adopted under the Insurance Code, Article 21.71, Article 1. 35, Article 1.35D, Article 1.04, Article 3.42, Article 3.51-6, Article 20A.09, Article 20A.22, and Texas Civil Statutes, Article 6252-13a, sec.4 and sec.5. Article 21.71(d) authorizes the agency to adopt rules governing the manner in which the insurer's toll-free telephone number appears on a policy. Article 1. 35(d) authorizes the agency to promulgate proper wording for the written complaint notice required in Article 1.35. Article 1.35D requires that insurers provide insureds with the department's toll free telephone number, as well as an indication of the services available through such toll-free telephone number. Article 1.04(b) authorizes the board to determine rules in accordance with the laws of this state for uniform application. Article 3.42 provides the department the statutory authority to review and approve forms relating to life, accident, and health insurance policies and annuity contracts, including certificates issued pursuant to group life, accident, and health insurance policies and certificates issued pursuant to group annuity contracts. Article 3.42(f) provides that the department may disapprove any such form which does not comply with applicable law and rules. Article 3.42(j) provides that the board is authorized to adopt rules necessary to implement the provisions of Article 3.42. Article 3.51-6 sec.1(d)(1) provides for group accident and health coverage conformity requirements. Article 3.51-6 sec.5 provides that the board is authorized to issue such rules and regulations as are necessary to administer statutory provisions relating to group accident and health coverages. Article 20A.09(a) and Article 20A.09(c) require that group contracts and evidences of coverage be approved before issuance and provide a clear and understandable description of the methods for resolving enrollee complaints by an HMO. Article 20A.22 provides that the board is authorized to adopt rules necessary to implement the provisions of the HMO Act. Texas Civil Statutes, Article 6252-13a, sec.4 and sec.5, authorize and require each state agency to adopt rules of practice setting forth the nature and requirement of available procedures, and prescribe the procedures for adoption of rules by a state administrative agency. sec.1.601. Notice of Toll-Free Telephone Numbers and Information and Complaint Procedures. (a) Purpose and applicability. (1) The purpose of this section is to provide the means by which insurers and health maintenance organizations (HMOs) may comply with the notice requirements of Article 21.71, Insurance Code, and the means by which insurers may comply with the notice requirements of Articles 1.35 and 1.35D. Compliance with this section is deemed compliance with these notice requirements. (2) Except as provided by subsection (b)(3), this section applies to any new or renewal insurance policy, bond, annuity contract, subscriber contract, health care plan, certificate, and evidence of coverage issued for delivery in this state on or after May 1, 1992. (3) All policies, certificates, or evidences of coverage which are delivered, issued for delivery or renewed in the State of Texas on or after May 1, 1992, by insurers or HMOs shall have the notice included as the first, second, or third page of the policy, certificate, evidence of coverage, or first written communication indicating renewal of coverage, pursuant to the provisions of subsection (b) of this section. The notice must appear on a full, separate page with no text other than that provided in this section. The form of the notice shall be as provided by subsection (b) of this section. The item numbers 1-8 in the left-hand column of this form correspond to the respective paragraphs of subsection (b) of this section, and the item numbers may be omitted from the notice. [graphic] (b) Notice requirements. Each respectively numbered item in the notice provided in subsection (a)(3) of this section must be set out as provided in this subsection. There must be at least one blank line between each item, but the text within each item may be single-spaced. The Spanish portion of each item included in a company's notice is required only for personal automobile, homeowners, and life, accident and health policies, certificates, and evidences of coverage. Text shall be in at least 10-point type. The letterhead of the insurer or HMO and any automated form identification numbers may be included on the notice. (1) Item 1 must be included in all notices. "Important Notice" and "Aviso Importante" must be in all capital letters and in at least 10-point bold face type. There must be at least one blank line below "Important Notice" and "Aviso Importante." (2) Item 2 is optional. The title for the English portion may be either "agent," "third party administrator," "managing general agent," or "employee benefits coordinator." The title for the Spanish portion may be either "agente," "administrador tercero," "agente general," or "administrador de beneficios para empleados." In lieu of a specific telephone number, the insurer or HMO may refer to the applicable telephone number and where it can be found. (3) Item 3 is required unless one of the exemptions provided in this subsection applies. For purposes of this section a toll-free telephone number is one which can be used by any covered person to obtain information or make a complaint without incurring long-distance calling expenses. The insurer's or HMO's toll- free number must appear in at least 10-point bold face type and must be preceded and followed by one blank line. Item 3 is not required for an insurer or HMO: (A) whose gross initial premium receipts collected in this state are less than $2 million a year; (B) with respect to fidelity, surety, or guaranty bonds; (C) that is a surplus lines insurer; or (D) with respect to certificates of insurance issued under a group policy: (i) if the insurer does not administer the group policy or determine questions of coverage; or (ii) if the policyholder to whom the policy is issued is an employer or a labor union. (4) Item 4 is optional. If used, the insurer's or HMO's name and address must be inserted. (5) Item 5 is required on all notices. The toll-free number must be in at least 10-point bold face type and must be preceded and followed by one blank line. (6) Item 6 is required on all notices. (7) Item 7 is required on all notices except those notices provided by HMOs with evidences of coverage. "Premium or claim disputes" and "Disputas sobre primas o reclamos" must be in all capital letters and 10-point bold face type. The insurer may insert either "agent," "company," or "agent or company" and may insert either "el agente," "la compania," or "el agente o la compania." (8) Item 8 is required on all notices. "Attach this notice to your policy" and "Una este aviso a su poliza" must be in all capital letters and 10-point bold face type. (c) Exceptions to notice requirements for insurer's toll-free number. (1) Requirements. Any exception claimed pursuant to subsection (b)(3)(A) of this section for a policy, certificate, or evidence of coverage delivered, issued for delivery or renewed in a given year must be based on gross initial premium receipts collected in Texas during the previous calendar year. Any insurer or health maintenance organization claiming an exception must provide to the Texas Department of Insurance, at a minimum, the following information: (A) a statement reciting the statutory basis for the exception; (B) a statement detailing the amount of gross initial premium receipts collected in this state for the calendar year immediately preceding the calendar year for which an exception is claimed; and (C) an affirmation by the chief executive officer or chief financial officer of the insurer or health maintenance organization certifying that he or she has reviewed the information and that such filed information is true, accurate, and complete, based upon that person's best knowledge, information, and belief. (2) Procedure. This statement must be filed separately from all other forms and exception statements filed with respect to other matters pending before the department. Claims for exception must be addressed to the appropriate regulatory division within the department. (A) Mail codes for the respective divisions are as follows: (i) Life, Accident, and Health 106-1A; (ii) Property and Casualty (Including Workers' Compensation) 102-1A; (iii) Title 104-1C; (iv) Risk Retention Groups 304-4A; (v) HMO 105-4A. (B) Exception statements should be filed with the Texas Department of Insurance, (Name of Division), (Mail Code #), P. O. Box 149104, Austin, Texas 78714-9104. (3) Duration of exception. Exceptions remain in effect for one year. The information required by paragraph (1) of this subsection must be provided to the department no later than May 1, 1992, for calendar year 1992, and no later than March 15 of any subsequent year for which an exception is claimed. (4) Policy and form filings. When an insurer or health maintenance organization files a policy form or evidence of coverage with the department for information or review, any exception to the requirements of this section pertaining to the insurer's toll-free telephone number must be noted in the filing. If a prior exception has not been granted, the documentation required by paragraph (1) of this subsection must be filed. (d) Policies in force prior to May 1, 1992, and renewed on or after May 1, 1992. The notice required to be provided by this section shall be provided with the first premium notice, or other communication indicating renewal of the coverage mailed or delivered after May 1, 1992. (1) For all policies, certificates or evidences of coverage in force prior to May 1, 1992, and renewed by any insurer or health maintenance organization on or after May 1, 1992, the notice required to be provided by this section shall either be mailed or be personally delivered to the policyholder, certificate holder, or enrollee, except as provided by paragraph (2) of this subsection. (2) For all group policies in force prior to May 1, 1992, and renewed by any insurer or health maintenance organization on or after May 1, 1992, the notice required to be provided by this section may be provided to the group policyholder for delivery to each certificate holder or enrollee under the group policy, or it may be mailed directly to each certificate holder or enrollee by the insurer or health maintenance organization. (e) Use of existing inventories. (1) Any insurer or HMO which has existing inventories of preprinted forms as a result of compliance with the Commissioner's Bulletin of August 13, 1991, is authorized to comply with this section by utilizing such stock until the inventories are exhausted, but not later than September 1, 1992. Any insurer or health maintenance organization which has existing inventories of forms and is complying with the Commissioner's Bulletin of August 13, 1991, by stamping the notice on the policy or affixing a preprinted adhesive label on the policy is authorized to comply with this section by such means until those existing form inventories are exhausted, but not later than September 1, 1992. (2) Any insurer or HMO that utilizes existing inventories of preprinted forms pursuant to paragraph (1) of this subsection must provide to the policyholder, certificate holder, or enrollee the notice required by this section with items 1, 5 and 8 in subsection (a)(3) of this section. (f) Policies, bonds, annutiy contracts, and certificates. Policies, bonds, annuity contracts, and certificates subject to the provisions of this section which required prior approval and were approved or filed prior to May 1, 1992, may be delivered or issued for delivery with the notice required by this section without refiling for approval. (g) Additions to group coverage. When an individual is added as a certificate holder, annuitant, or enrollee to a policy or plan issued, delivered, or renewed on or after May 1, 1992, the notice required by this section must be included as the first, second, or third page of the certificate, annuity contract, or evidence of coverage. 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 April 10, 1992. TRD-9205023 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: May 1, 1992 Proposal publication date: January 14, 1992 For further information, please call: (512) 463-6327 Subchapter K. Custody and Use of Criminal History Record Information 28 TAC sec.sec.1.1201-1.1205 The State Board of Insurance of the Texas Department of Insurance adopts amendments to sec.sec.1.1201-1.1205, without changes to the proposed text as published in the January 7, 1992, issue of the Texas Register (17 TexReg 93). The new sections are necessary to comply with the provisions of the Texas Insurance Code, Article l.l0C(c), which requires the adoption of rules governing the custody and use of information obtained under the Texas Insurance Code, Article l.l0C. New sec.1.1201 sets forth general provisions concerning these new sections, sec.1.1202 defines the terms used in these new sections, and sec.1.1203 sets out the manner in which the Texas Department of Insurance will maintain custody of and use criminal history information described in Texas Insurance Code, Article 1.10C. New sec.1.1204 describes the way in which applicants and licensees shall furnish fingerprints to the Texas Department of Insurance, and sec.1.1205 describes the potential consequences of failure to comply with a request for fingerprints. There were no comments received for the sections. National Home Life Assurance Company testified against the sections. A commenter noted that it was unclear as to whether the fingerprints would be required only for companies seeking a certificate of authority and commented that the sections were too restrictive. The rules require that the fingerprints be obtained from an office of the Texas Department of Public Safety or from the county sheriff or the police department in which the investigated person resides or works. The commenter preferred to furnish the fingerprints at a branch office or at the person's home. The board makes the following response to this comment. The rules provide that an investigated person must furnish the fingerprints. An investigated person is defined in the rules as "an applicant for any license ... or a corporate officer of an insurance company regulated by the department." This definition was used because the statute on which the rules are based allows for the gathering and use of criminal history information for applicants for licenses and for corporate officials of insurance companies regulated by the department. Corporate officials of insurance companies may, therefore, be required to submit fingerprints even though the company which that official represents has already been licensed. The fingerprints must be taken at the offices specified in the rules because the agency has been advised that if, as authorized by the statute, the fingerprints are to be furnished to the FBI, the prints must be taken at one of those offices. For this reason, the rules are not being changed at this time. It should be noted that the officials of corporations will not automatically be required to obtain fingerprints. The officials will only be asked to do so by specific request of the department. The new sections are adopted under the authority of the Texas Insurance Code, Article l.04, which authorizes the State Board of Insurance to issue rules in accordance with the laws of this state, and under Article l.l0C. 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 April 9, 1992. TRD-9204937 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: April 30, 1992 Proposal publication date: January 7, 1992 For further information, please call: (512) 463-6327 TITLE 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts Chapter 3. Tax Administration Subchapter BB. Battery Sales Fee 34 TAC sec.3.711 The Comptroller of Public Accounts adopts new sec.3.711, concerning collection and reporting requirements, with changes to the proposed text as published in the December 13, 1991, issue of the Texas Register(16 TexReg 7164). House Bill 1986, adopted in the 72nd Legislature, 1991, requires the comptroller to administer and enforce the collection of the battery fee beginning September 1, 1991, imposed on the wholesale or retail sale of a lead-acid battery of six volts or more not sold for resale. The new section provides for the collection and reporting of the fee. The first change addresses concerns of industry relating to when a dealer may begin filing quarterly and appears in the sentence added to subsection (d)(2). The second change adds the exemption for the United States government and is addressed in subsection (g)(4) and (5). The phrase "for which the customer pays an extra charge" was also added to subsection (h)(2) for clarification. Comments were received from Texas Automobile Dealers Association relating to sales for resale, quarterly filing, replacements covered by a warranty or service contract, and goodwill replacements. The comptroller responded that the sale of an item with a battery as an integral part is not the sale of a separate battery; therefore, the sale prior to the installation is not a sale for resale. The comptroller explained that the replacement of a battery under a manufacturer's warranty is different from a replacement under a service contract or extended warranty because the sales of service contracts and extended warranties are actually the sales of additional guarantees and the replacement of a battery under either sales agreement is subject to the fee. The comptroller further explained that a dealer who replaces a battery as a gesture of goodwill will be liable for the fee. The new section 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. sec.3.711. Collection and Reporting Requirements. (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Dealer-A wholesaler, retailer, or any other person who sells or offers to sell lead-acid batteries. (2) Lead-acid battery-Any battery, new or used, which contains lead and sulfuric acid, in liquid or gel form. (3) Sale for resale-A sale of a lead-acid battery to a purchaser for the purpose of reselling the battery in the normal course of business in the form or condition in which it is acquired (i.e., as a separate item). A sale of a battery that is attached to or becomes an integral part of a vehicle, boat, or other equipment that is being sold, rented, or leased is not a sale for resale. The battery sales fee is due on the sale prior to the battery becoming a part of this equipment. (b) Collection and remittance of the fee. (1) Every dealer must collect the fee on each sale of a lead-acid battery of six volts or more, except a sale for resale or a sale for disposal or reclamation. A fee shall not be charged, collected, or allowed as an offset on a battery taken as a trade-in. (2) The fee is not due on the sale of a vehicle, boat, or other equipment that has a battery as an integral part of it. (3) The amount of the fee due must be separately stated on the invoice, bill, or contract to the customer and shall be identified as the Texas battery sales fee. (4) A dealer may not advertise, make public, indicate, or imply that the dealer will absorb, assume, or refund any portion of the fee. (c) Report forms. The battery sales fee is to be reported on the Texas battery sales fee/waste tire recycling fee report form as prescribed by the comptroller. The fact that the dealer does not receive the form or does not receive the correct form from the comptroller for the filing of the return does not relieve the dealer of the responsibility of filing a return and paying the required fee. (d) Reporting period. (1) Monthly filing. The battery sales fee is due and payable on or before the 20th day of the month following the end of each calendar month. Every dealer also required to report the waste tire recycling fee must file at the same time the battery sales fee is filed. Returns must be filed on a monthly basis unless a dealer qualifies as a quarterly filer under paragraph (2) of this subsection. (2) Quarterly filing. A dealer who owes an average, as computed for the year, of less than $50 for a calendar month or less than $150 for a calendar quarter is required to file a return and pay the fee on or before the 20th day of the month following the end of the calendar quarter. The waste tire recycling fee liability is not included in determining the requirement for quarterly filing; however, a dealer required to file the waste tire recycling fee return on a monthly basis must file the battery fee return at the same time. The comptroller will notify a dealer when the report and payment may be submitted quarterly. (e) Payment of the fee. (1) On or before the 20th day of the month following each reporting period, every person subject to the fee shall file a consolidated return for all businesses operating under the same fee payer number and remit the total fee due. (2) Every dealer may retain $ .025 for each fee (i.e., battery) reported and paid on his return. (3) The returns must be signed by the person required to file the return or by the person's duly authorized agent, but need not be verified by oath. (f) Records required. (1) Invoices or other records must be kept for at least four years after the date on which the invoices or records are prepared. (2) The comptroller or an authorized representative has the right to examine any records or equipment of any person liable for the fee in order to verify the accuracy of any return made or to determine the fee liability in the event no return is filed. (g) Exemptions. (1) Sales for resale are not subject to the fee. (2) The sale of a battery that under the sales contract is shipped to a point outside Texas is not subject to the fee imposed by this section if the shipment is made by the seller by means of: (A) the facilities of the seller; (B) delivery by the seller to a carrier for shipment to a consignee at a point outside this state; or (C) delivery by the seller to a forwarding agent for shipment to a location in another state of the United States or its territories or possessions. (3) Exports beyond the territorial limits of the United States are not subject to the fee. Proof of export may be shown only by: (A) a copy of a bill of lading issued by a licensed and certificated carrier showing the seller as consignor, the buyer or purchaser as consignee, and a delivery point outside the territorial limits of the United States; (B) documentation provided by a licensed United States customs broker certifying that delivery was made to a point outside the territorial limits of the United States; (C) formal entry documents from the country of destination showing that the battery was imported into a country other than the United States. For the country of Mexico, the formal entry document would be the pedimento de importaciones document with a computerized, certified number issued by Mexican customs officials; or (D) a copy of the original airway, ocean, or railroad bill of lading issued by a licensed and certificated carrier which describes the items being exported and a copy of the freight forwarder's receipt if the freight forwarder takes possession of the property in Texas. (4) There is no exemption provided for any organization or governmental agency, except as provided in paragraph (5) of this subsection. (5) The United States, its instrumentalities and agencies are exempted from the battery sales fee. (h) Replacements covered by a warranty or service contract. (1) The replacement of a battery under a manufacturer's warranty, without an additional charge to the purchaser, is not the sale of a battery to the purchaser. This replacement, therefore, is not subject to the fee. If there is a charge to the customer for the replacement (such as a pro rata warranty adjustment), then the customer must pay the battery sales fee. (2) The replacement of a battery under an extended warranty or a service contract, for which the customer pays an extra charge, depends on the terms of the contract. (A) If the replacement is free of charge to the customer, the dealer is responsible for paying the fee. (B) If there is a charge to the customer for the replacement, the customer must pay the fee. 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 April 7, 1992. TRD-9204804 Martin Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: April 28, 1992 Proposal publication date: December 13, 1991 For further information, please call: (512) 463-4028 Chapter 7. Administration of State Lottery Act Subchapter C. Practice and Procedure 34 TAC sec.sec.7.201-7.227 The Comptroller of Public Accounts adopts new sec.sec.7.201-7.227, concerning intent and scope of rules; construction of rules; contested cases; representation and participation; initiation of a hearing; extensions of time; content of request for hearing; preliminary conference; motion to dismiss; request for extended hearing; notice of setting; administrative law judge to hear case; filing of documents; continuances (postponement of hearing); conduct of hearing; rules of evidence; oral evidence, witnesses, and penalty for false statements; evidence by official notice; proposed decision; comptroller's decision; motion for rehearing; computation of time; service; discovery; joint hearings; dismissal of case; burden of proof; definitions, without changes to the proposed text as published in the February 11, 1992, issue of the Texas Register (17 TexReg 1212). The purpose of the new sections is to state hearings procedures and definitions relating to the administration of the state lottery under the State Lottery Act, sec.2.02. No comments were received regarding adoption of the new sections. The new sections are adopted under the State Lottery Act, sec.2.02, which provides the comptroller with the authority to adopt all rules necessary to administer the State Lottery Act. This agency hereby certifies that the new sections as adopted have been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. TRD-9204803 Charles Johnstone Senior Legal Counsel, General Law Section Comptroller of Public Accounts Effective date: April 28, 1992 Proposal publication date: February 11, 1992 For further information, please call (512) 463-4028 Part V. Texas County and District Retirement System Chapter 105. Creditable Service 34 TAC sec.105.3 The Texas County and District Retirement Systems adopts an amendment to sec.105.3, concerning the definition of periods of organized conflict or crisis, without changes to the proposed text as published in the February 11, 1992, issue of the Texas Register (17 TexReg 1218). The amendment is needed to include time spent by members in military service during Persian Gulf Crisis within the definition of Military Service Credit. The amendment expands the periods of organized crisis to include the Persian Gulf Crisis for Military Service Credit. No comments were received regarding adoption of the amendment. The amendment is adopted under The Texas Government Code, sec.845.102, which provides the board of trustees of the Texas County and District Retirement System with the authority to adopt rules necessary or desirable for effective administration of the system. Issued in Austin, Texas, on April 6, 1992. TRD-9204707 J. Robert Brown Director Texas County and District Retirement System Effective date: April 27, 1992 Proposal publication date: February 11, 1992 For further information, please call: (512) 476-6651 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 11. Food Distribution and Processing Food Distribution Program 40 TAC sec.11.108 The Texas Department of Human Services (DHS) adopts an amendment to sec.11. 108, concerning financial management, without changes to the proposed text as published in the March 3, 1992, issue of the Texas Register (17 TexReg 1605). The justification for the amendment is to cite the Human Resources Code, sec.33.006, which limits the amount of distribution charges that DHS can assess. Previously the rule cited the federal authority to assess fees but did not cite the Human Resources Code, which limits the amount that can be assessed. The amendment will function by providing a clearer understanding of the limitations on fee assessments in the Food Distribution Program. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 33, which provides the department with the authority to administer public and nutritional assistance programs. 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 April 7, 1992. TRD-9204805 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: May 1, 1992 Proposal publication date: March 3, 1992 For further information, please call: (512) 450-3765 Chapter 27. Intermediate Care Facilities for the Mentally Retarded (ICF-MR) Subchapter A. General Requirements The Texas Department of Human Services (DHS) adopts amendments to sec.27.103 and sec.27.201, concerning compliance with federal and state standards for participation and participation requirements in its Intermediate Care Facilities for the Mentally Retarded (ICF-MR) rule chapter. The justification for the amendments is to ensure compliance with the Americans with Disabilities Act of 1990. The amendment will function by ensuring that all individuals with disabilities have access to ICF-MR facilities that contract with DHS. 40 TAC sec.27.103 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. The amendment is adopted in compliance with federal requirements to be effective May 15, 1992. sec.27.103. Compliance with Federal and State Standards for Participation. (a)-(b) (No change.) (c) In addition to complying with the requirements of this chapter, the facility must meet all applicable provisions of other federal regulations, including, but not limited to, those pertaining to nondiscrimination on the basis of race, color, or national origin in 45 CFR Part 80; nondiscrimination on the basis of handicap in 45 CFR Part 84, 29 CFR Part 1630, and 28 CFR Parts 35 and 36; nondiscrimination on the basis of age in 45 CFR Part 91; protection of human subjects of research in 45 CFR Part 46; and fraud and abuse in 42 CFR Part 455. 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 April 9, 1992. TRD-9204926 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: May 15, 1992 Proposal publication date: N/A For further information, please call: (512) 450-3765 Subchapter B. Contracting Requirements 40 TAC sec.27. 201 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. The amendment is adopted in compliance with federal requirements to be effective May 15, 1992. sec.27.201. Participation Requirements. (a)-(c) (No change.) (d) Each contracting facility must comply with the Civil Rights Act of 1964, Title VI (Public Law 88-352); the Rehabilitation Act of 1973, sec.504 (Public Law 93-112); The Americans with Disabilities Act of 1990 (Public Law 101-336); and all amendments to these Acts and all requirements imposed by the regulations issued under these Acts. These Acts and regulations prohibit persons in the United States from being excluded from participation in, or denied, any aid, care, service, or other benefits provided by federal and/or state funding, or otherwise being subjected to any discrimination on the basis of race, color, national origin, sex, age, disability, or religion. In addition, each facility must comply with the Texas Health and Safety Code, Chapters 81 and 85 (relating to workplace and confidentiality guidelines regarding Human Immunodeficiency Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS)), and 40 TAC Chapter 73. 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 April 9, 1992. TRD-9204927 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: N/A Proposal publication date: N/A For further information, please call: (512) 450-3765 Chapter 29. Purchased Health Services Subchapter D. Medicaid Home Health Program 40 TAC sec.29. 304, sec.29.306 The Texas Department of Human Services (DHS) adopts amendments to sec.29.304 and sec.29.306, without changes to the proposed text as published in the February 11, 1992, issue of the Texas Register (17 TexReg 1219). The justification for the amendments is to allow the Medicaid program to reimburse home health agencies for medically necessary physical therapy services provided in the home. The amendments were mandated by the Texas Legislature in its last session. Services must be ordered by a physician and included in the patient's plan of care. Physical therapy benefits are available only for treatment of acute musculoskeletal or neuromuscular conditions or acute exacerbations of chronic musculoskeletal or neuromuscular conditions. All physical therapy services provided through a home health agency must be prior authorized before payment can be made to the home health agency for these services. These services are covered under the purchased health services insured arrangement, and current premium amounts are sufficient to cover the additional costs. The amendments will function by providing home health patients access to physical therapy services through the home health agency. Previously, to obtain physical therapy services, patients had to leave the home and obtain care through a physician's office, physical therapist's office, or hospital. During the public comment period, DHS received comments from the Texas Association for Home Care consisting of several questions regarding the proposal. The commenter's questions and DHS's responses follow. Comment: The association asked if the client will have to have skilled nursing care in the home and if the client has to be homebound for receipt of home health physical therapy services. Response: Section 29.304 as proposed stated "...the client must meet all other requirements for receipt of home health services." For home health services to be payable through Medicaid, the client must have a need for skilled nursing care and must be homebound. Comment: The association asked whether or not a nurse's assessment of need for physical therapy services is acceptable as an assessment for the physical therapy discipline. Response: The proposed rules for home health physical therapy services indicated that for such services to be payable, the services must be ordered by a physician. It is expected that the nurse requesting prior authorization will draw on information from other members of the health care team, including the physical therapist, in building the request. Comment: The association also asked whether or not physical therapy services fall within the 50-visit limit, or if additional visits can be approved. Response: Physical therapy services do not count against the 50-visit limit. The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. 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 April 8, 1992. TRD-9204839 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: May 1, 1992 Proposal publication date: February 11, 1992 For further information, please call: (512) 450-3765 Chapter 48. Community Care for Aged and Disabled Case Management The Texas Department of Human Services (DHS) adopts amendments to sec.48.3905 and sec.48.8901, concerning case management, without changes to the proposed text as published in the February 14, 1992, issue of the Texas Register (17 TexReg 1276). The justification for the amendment to sec.48.3905 is to expand the rights of clients receiving adult foster care. The justification for the amendment to sec.49.8901 is to require orientation and training to enhance adult foster care providers' caregiving skills. The amendment to sec.48.3905 will function by clarifying a client's right to file complaints and adding rights concerning privacy, treatment of personal property, and freedom from abuse, punishment, and restraints. The amendment to sec.48.8901 will function by adding orientation and training requirements for adult foster care providers. No comments were received regarding adoption of the amendments. 40 TAC sec.48.3905 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs. 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 April 13, 1992. TRD-9205060 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Insurance Effective date: May 15, 1992 Proposal publication date: February 14, 1992 For further information, please call: (512) 450-3765 Minimum Standards 40 TAC sec.48.8901 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs. 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 April 13, 1992. TRD-9205061 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: May 15, 1992 Proposal publication date: February 14, 1992 For further information, please call: (512) 450-3765 Chapter 49. Child Protective Services Subchapter K. Court-related Services The Texas Department of Human Services (DHS) adopts the repeal of sec.sec.49. 1101-49.1110, and new sec.sec.49.1101-49.1110, concerning court-related services, without changes to the proposed text as published in the February 14, 1992, issue of the Texas Register (17 TexReg 1277). The repeals and new sections are justified because they will ensure that abused and neglected children receive effective court-related services from the department. The repeals and new sections will function by incorporating legislation passed by the 71st and 72nd Texas Legislatures and by improving the clarity and readability of the sections. No comments were received regarding adoption of the repeals and new sections. 40 TAC sec.sec.49.1101-49.1110 The repeals are adopted under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs, and Chapter 41, which authorizes the department to enforce laws for the protection of children. The repeals are also adopted under the Texas Family Code, Title 2, Chapter 34, which authorizes the department to provide services to alleviate the effects of child abuse and neglect. 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 April 9, 1992. TRD-9204928 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: May 15, 1992 Proposal publication date: February 14, 1992 For further information, please call: (512) 450-3765 The new sections are adopted under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs, and Chapter 41, which authorizes the department to enforce laws for the protection of children. The new sections are also adopted under the Texas Family Code, Title 2, Chapter 34, which authorizes the department to provide services to alleviate the effects of child abuse and neglect. 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 April 9, 1992. TRD-9204929 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: May 15, 1992 Proposal publication date: February 14, 1992 For further information, please call: (512) 450-3765 Chapter 49. Child Protective Services Subchapter U. Services to Truants and Runaways Program The Texas Department of Human Services (DHS) adopts the repeal of Subchapter U, sec.sec.49.2101-49.2111, concerning services to truants and runaways, and new Subchapter U, sec.sec.49.2101-49.2110, concerning services to runaways and at- risk youth, in its Child Protective Services (CPS) chapter. Sections 49. 2102, 49.2103, and 49.2109 are adopted with changes to the proposed text as published in the January 31, 1992, issue of the Texas Register (17 TexReg 841). The repeals and new sec.sec.49.2101, 49.2104-49.2108, and 49.2110 are adopted without changes and will not be republished. The repeals and new sections are justified because they will help youth and their families to resolve crises that threaten their capacity to live together. The repeals and new sections will also help youth and families develop skills to cope with problems and stresses in their homes and help parents resume their parental responsibilities and continue to meet them on an ongoing basis. Lastly, the repeals and new sections are justified because they will provide short-term residential care for youth whose immediate return to the home is not advisable. The repeals and new sections will function by improving CPS's program of contracting for short-term counseling and residential services to runaways and at-risk youth and their families. Although the department received no comments regarding adoption of the repeals and new sections, the department is making minor editorial changes to sec.sec.49.2102, 49.2103, and 49.2109 to improve the clarity of the sections. 40 TAC sec.sec.49.2101-49.2111 The repeals are adopted under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs, including a program of services for children who have been truant or who have run away from home, children who are at risk of running away from home or at risk of abuse or neglect, and the families of all these children. The repeals are also adopted under the Texas Family Code, Title 2, Chapter 34, which authorizes the department to accept reports of children who have been truant or who have run away from home. 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 April 13, 1992. TRD-9205062 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: May 18, 1992 Proposal publication date: January 31, 1992 For further information, please call: (512) 450-3765 Subchapter U. Services to Runaways and At-Risk Youth 40 TAC sec.sec.49.2101-49.2110 The new sections are adopted under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs, including a program of services for children who have been truant or who have run away from home, children who are at risk of running away from home or at risk of abuse or neglect, and the families of all these children. The new sections are also adopted under the Texas Family Code, Title 2, Chapter 34, which authorizes the department to accept reports of children who have been truant or who have run away from home. sec.49.2102. Clients. (a) Eligibility. Youth between the ages of 10 and 17 inclusively, and their families, are eligible to receive services if the youth fit any of the following eligibility categories. (1) Runaway youth. A youth who has left home or who has no identifiable residence. A youth whose parents or caretakers have told him to leave or consented to his departure is considered a runaway. (2) Youth at risk of running away. A youth who appears likely to run away from home. (3) Truant. A youth who has been voluntarily absent from school for reasons that the school does not accept. (4) Youth at risk of abuse or neglect. A youth referred by the Texas Department of Human Services' (DHS's) Protective Services for Families and Children (PSFC) Department to reduce the risk of abuse or neglect. PSFC may make such a referral only after completing an investigation of child abuse or neglect and deciding not to directly provide continuing services. Accordingly, a youth with an open protective services case is not eligible under this heading. (b) Exception. Youth who are currently on probation for delinquent conduct, on parole, or in the custody of the Texas Youth Commission are not eligible for services. (c) Documenting eligibility. The contractor must determine each youth's category of eligibility as designated in subsection (a) of this section, specify it in the youth's case record, and include documentation in the case record to support the eligibility determination. (d) Changes in eligibility. When there are changes in the basis of a client's eligibility that affect the services the client may receive, the contractor must document the changes in the case record. (e) Equal access. Contractors must give all eligible clients equal access to services whether the clients have requested services directly or been referred. If referrals begin to exceed a contractor's service capacity, the contractor must establish priorities or develop other methods to address the overload. The contract manager must approve the contractor's methods of addressing the overload. sec.49.2103. Contractors. (a) Types of contractors. The Protective Services for Families and Children (PSFC) Department has the authority to contract with any of the following types of providers to provide services to runaways and at-risk youth: (1) private nonprofit agencies; (2) public agencies including, but not limited to, county governments, local offices of the Texas Department of Mental Health and Mental Retardation, and school districts; (3) private for-profit agencies; and (4) individuals. (b) Compliance with applicable requirements. Contractors for services to runaways and at-risk youth must comply with all applicable requirements of Chapter 69 of this title (relating to Contracted Services) and the requirements of this subchapter. (c) Restriction on county governments. County governments that contract to provide services to runaways and at-risk youth must not include these services in their juvenile probation or juvenile justice activities. Contracting counties must ensure that the following conditions are satisfied. (1) Staff providing services must not be on duty as, or serving in the capacity of, juvenile probation officers. They also must not be performing functions unique to juvenile probation. If staff providing services are employed by a juvenile probation department, they must make every effort to ensure that clients are aware that they are: (A) not juvenile probation officers; and (B) not functioning in a juvenile probation capacity. (2) County staff providing services must provide them in facilities that are separate and distinct from juvenile probation offices and juvenile detention facilities. If county staff provide services to runaways and at-risk youth in a facility that is adjacent to a juvenile probation or detention facility, the two facilities must: (A) be separate; (B) have separate entrances; and (C) be clearly distinguished. (d) Scope of the restriction. The restriction specified in subsection (c) of this section does not prohibit a contracting county's juvenile probation department from administering contract services to runaways and at-risk youth. (e) Service area. Each contractor must serve a primary county. A contractor may also receive funding to provide services in as many as four outlying counties. In each outlying county served under the contract, the contractor must: (1) have a clearly identified office; (2) provide a staff person at least part time; and (3) be able to provide crisis-intervention services within 24 hours of any request. sec.49.2109. Interagency Coordination. (a) Child Protective Services (CPS) program referrals to contractors. (1) Local office agreement. Each contractor must establish a written agreement with the primary CPS office in each county that the contractor serves. The agreement must: (A) establish guidelines for determining when CPS should refer clients to the contractor for services to runaways and at-risk youth; (B) outline procedures for making and receiving such referrals; (C) assign responsibilities for providing services; and (D) designate a CPS staff member as the local office's contact person for services to runaways and at-risk youth. If the contractor is a participant in the county's Memorandum of Understanding (MOU) on Services to Runaways, the contractor may substitute the MOU for the agreement required in this paragraph. (2) Who can be referred. When referring a youth or a family to a contractor, CPS staff must ensure that the referral meets applicable eligibility requirements. These requirements vary according to the type of presenting problem and the CPS stage of service. The differing requirements are specified in the following chart: [graphic] (b) Juvenile probation department referrals to contractors. Each contractor must establish a written agreement with the juvenile probation department in each county that the contractor serves. The agreement must: (1) establish guidelines for determining when the juvenile probation department should refer clients to the contractor; (2) outline procedures for making and receiving such referrals; (3) assign responsibilities for providing services; and (4) designate a juvenile probation department staff member as the department's contact person for services to runaways and at-risk youth. If the contractor is a participant in the county's MOU on Services to Runaways, the contractor may substitute the MOU for the agreement required in this subsection. (c) Community collaboration. Each contractor must develop and maintain a local advisory council to support and guide the contractor's service planning and delivery. The contractor must make reasonable efforts to include major, local youth-serving agencies on the advisory council, and to consult with such agencies if they are not on the council. Examples of these agencies include schools, juvenile probation departments, CPS units, and local units of the Texas Department of Mental Health and Mental Retardation. 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 April 13, 1992. TRD-9205063 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: May 18, 1992 Proposal publication date: January 31, 1992 For further information, please call: (512) 450-3765 Part III. Texas Commission on Alcohol and Drug Abuse Chapter 152. Approved Alcohol Awareness Programs General Provisions 40 TAC sec.sec.152.1-152.7 The Texas Commission on Alcohol and Drug Abuse adopts new sec.sec.152.1-152.7, concerning alcohol awareness programs, without changes to the proposed text as published in the February 7, 1992, issue of the Texas Register (17 TexReg 1072) These rules are adopted to define terms commonly used to establish minimum standards and criteria for the operation of approved alcohol awareness programs for minors who are convicted of the offense of purchase, consumption, or possession of an alcoholic beverage. The section is adopted in order to define what programs must do to become an alcohol awareness program approved by the Texas Commission on Alcohol and Drug Abuse. The sections will establish quality programming in alcohol awareness program approved by the commission, as well as establish guidelines for curriculum content. Three comments were received supporting the adoption of the proposed alcohol awareness rules. The names of groups and associations making comments for the sections are as follows: Brown County Council on Alcoholism and Drug Abuse; Heart of Texas Council on Alcoholism and Drug Abuse; Texoma Council on Alcohol and Drug Abuse. The new sections are adopted under Acts 1991, 72nd Legislature, Chapter 163, effective September 1, 1991, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to promulgate written rules and regulations setting forth minimum standards for the operation of approved Alcohol Awareness Programs for minors who are convicted of the offense of purchase, consumption, or possession of an alcoholic beverage. 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 April 8, 1992. TRD-9204891 Bob Dickson Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: May 1, 1992 Proposal publication date: February 7, 1992 For further information, please call: (512) 867-8720 Alcohol Awareness Program Standards 40 TAC sec.sec.152.20-152.33 The Texas Commission on Alcohol and Drug Abuse adopts new sec.sec.152.20-152. 33, concerning alcohol awareness programs. Section 152.24 is adopted with changes to the proposed text as published in the February 7, 1992, issue of the Texas Register (17 TexReg 1073). Sections 152.20-152.23 and 152.25-152. 33 are adopted without changes and will not be republished. These rules are adopted to define terms commonly used and to establish minimum standards and criteria for the operation of approved alcohol awareness programs for minors who are convicted of the offense of purchase, consumption, or possession of an alcoholic beverage. The section is adopted in order to define what programs must do to become an alcohol awareness program approved by the Texas Commission on Alcohol and Drug Abuse. In sec.152.24, the cited statute and verbage were changed to reflect an accurate confidentiality statement. The sections will establish quality programming in alcohol awareness programs approved by the commission, as well as establishing guidelines for curriculum content. Three comments were received, basically supporting the adoption of the proposed alcohol awareness rules. One respondent wanted clarification on sec.152. 29 regarding instructor training, which was provided. Another respondent requested clarification on sec.152.25(8) regarding participant screening and sec.152.25(10) regarding exit interviews, which were provided. The names of groups and associations making comments for the sections are as follows: Brown County Council on Alcoholism and Drub Abuse; Heart of Texas Council on Alcoholism and Drug Abuse; Texoma Council on Alcohol and Drug Abuse. The new sections are adopted under Acts 1991, 72nd Legislature, Chapter 163, effective September 1, 1991, which provides the Texas Commission on Alcohol and Drug Abuse with the authority to promulgate written rules and regulations setting forth minimum standards for the operation of approved Alcohol Awareness Programs for minors who are convicted of the offense of purchase, consumption, or possession of an alcoholic beverage. sec.152.24. Confidentiality. Approved programs shall abide by all applicable federal and state laws relating to confidentiality of patient/client records including, without limitation, 42 United States Code, sec.290dd-3 and 42 United States Code, sec.290ee-3, 42 Code of Federal Regulations Part 2, and the Texas Health and Safety Code, Chapter 611 (Vernon 1992). 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 April 8, 1992. TRD-9204892 Bob Dickson Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: May 1, 1992 Proposal publication date: February 7, 1992 For further information, please call: (512) 867-8720