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 XII. Advisory Commission on State Emergency Communications Chapter 255. Finance 1 TAC sec.255.8 The Advisory Commission on State Emergency Communications adopts new sec.255.8, concerning 9-1-1 district funding policy, without changes to the proposed text as published in the December 22, 1992, issue of the Texas Register (17 TexReg 8999). Establishes policy for emergency communication districts that pay into the 9-1- 1 Equalization Surcharge Fund to request funds for 9-1-1 system needs which meet standards and submission procedures as established by the Commission. The section will allow emergency communication districts to submit requests for funding assistance through established procedures for 9-1-1 emergency telephone service. Comments received favored the deletion of the words "regarding financial need." The consensus was that the words created redundancy and were unnecessary as the Commission already addresses financial need on any requests received. Those commenting in favor of the adoption were: Denco Area 9-1-1 District; Nortex 9-1-1 Communication District; City of Dallas; Greater Harris County 9-1-1 Emergency Network; Montgomery County Emergency Communication District; Austin County Emergency Communication District; and Potter-Randall County Emergency Communication District. The new section is adopted under the Health and Safety Code, Subchapter D, sec.771.072, which provides the Advisory Commission on State Emergency Communications with the authority to assess equalization surcharge fees to customers receiving long-distance service and allocate such monies for 9-1-1 service needs which meet standards established by the Commission according to the procedures determined by the Commission. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 22, 1993. TRD-9320726 Mary A. Boyd Executive Director Advisory Commission on State Emergency Communications Effective date: April 13, 1993 Proposal publication date: December 22, 1992 For further information, please call: (512) 327-1911 TITLE 4. AGRICULTURE Part III. Texas Feed and Fertilizer Control Service Chapter 65. Commercial Fertilizer Rules Labeling 4 TAC sec.65.24 The Texas Feed and Fertilizer Control Service adopts an amendment to sec.65.24, concerning warnings or cautionary statements required, without changes to the proposed text as published in the February 2, 1993, issue of the Texas Register (18 TexReg 733). The amendment enables editorial correction for clarification of the rule. The amendment regulates warning or cautionary statements. 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 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 March 22, 1993. TRD-9320675 George W. Latimer, Jr. Texas State Chemist Texas Feed and Fertilizer Control Service Effective date: April 13, 1993 Proposal publication date: February 5, 1993 For further information, please call: (409) 845-1121 4 TAC sec.65.26 The Texas Feed and Fertilizer Control Service adopts an amendment to sec.65.26, concerning organic and organic base nitrogen fertilizer, without changes to the proposed text as published in the February 2, 1993, issue of the Texas Register (18 TexReg 733). The amendment enables editorial correction for clarification of the rule. The amendment provides definitions. 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 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 March 22, 1993. TRD-9320676 George W. Latimer, Jr. Texas State Chemist Texas Feed and Fertilizer Control Service Effective date: April 13, 1993 Proposal publication date: February 5, 1993 For further information, please call: (409) 845-1121 4 TAC sec.65.31 The Texas Feed and Fertilizer Control Service adopts an amendment to sec.65.31, concerning net weight, without changes to the proposed text as published in the February 2, 1993, issue of the Texas Register (18 TexReg 733). The amendment enables editorial correction for clarification of the rule. The amendment prescribes rules for net weight. 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 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 March 22, 1993. TRD-9320677 George W. Latimer, Jr. Texas State Chemist Texas Feed and Fertilizer Control Service Effective date: April 13, 1993 Proposal publication date: February 5, 1993 For further information, please call: (409) 845-1121 TITLE 16. ECONOMIC REGULATION Part I. Railroad Commission of Texas Chapter 5. Transportation Division Subchapter P. Commercial Zones 16 TAC sec.5.294 The Railroad Commission of Texas adopts an amendment to sec.5.294, concerning Existing Commercial Zones, without changes to the proposed text as published in the October 27, 1992, issue of the Texas Register (17 TexReg 7567). The amendment will add the City of Forney and adjoining territories to the existing Dallas and Fort Worth Commercial Zones. Transportation of goods by for- hire carriers (other than specialized motor carriers) between the proposed territorial addition and the existing Dallas and Fort Worth Commercial Zones will be considered local transportation and not regulated by the Commission. Seven comments in favor of the amendment indicate that Forney is close to the central city of Dallas; that Forney merchants conduct business every day with points in the Dallas and Fort Worth Commercial Zones; that the territory proposed for addition and the Dallas Fort Worth Commercial Zones use the same public utilities; that Forney residents commute to work to Dallas; that Forney residents share television, radio, and newspapers with residents of the involved commercial zones; and that industries from Dallas are relocating in Forney. One comment in opposition to the amendment was received from Central Freight Lines, Inc. stating that the Forney area is neither adjacent to nor commercially a part of Fort Worth and should therefore not be included as part of the Fort Worth Commercial Zone. The Forney Chamber of Commerce filed comment in favor of the proposed rule change. The Commission disagrees with the comment in opposition, because the Dallas- Fort Worth area operates and is recognized as one metropolitan area. The amendment is adopted under the Texas Motor Carrier Act, Texas Civil Statutes, Article 911b, which authorizes the commission to prescribe rules and regulations for the operations of motor carriers. 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 22, 1993. TRD-9320749 Mary Ross McDonald Assistant Director, Legal Division-Gas Utilities/LP Gas Railroad Commission of Texas Effective date: April 14, 1993 Proposal publication date: October 27, 1992 For further information, please call: (512) 463-7085 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 145. Long Term Care Subchapter G. Licensing and Medical Certification Standards for Nursing Homes 25 TAC sec.145.111 The Texas Department of Health (department) adopts an amendment to sec.145.111, with changes to the proposed text as published in the January 12, 1993, issue of the Texas Register (18 TexReg 195). However, as a result of comments received, the department has made changes to the standards which the section adopts by reference as well. The standards adopted by reference in sec.145.111, concern standards for nursing homes jointly developed by the department and the Texas Department of Human Services (TDHS) that apply to licensure and to Medicaid certification (standards). The standards are in TDHS rules in 40 TAC sec.sec.19.1-19.2216. The sections covered under this amendment to 25 TAC sec.145.111 are the adopted repeal of 40 TAC sec.19.217 and sec.19.505; adopted new sec.19.217 and sec.19.504; adopted amendments to sec.sec.19.502, 19.503, 19.1911, 19.1912, and 19. 1923. The adopted rules are to be published in the Texas Register under TDHS adopted rules next week. The TDHS are adopting these changes effective May 15, 1993, which is the date reflected in our amendment to sec.145.111 and is a change from what was proposed. The changes provide substantive clarification and consolidation of the previously adopted sections. The changes update the educational qualifications and standards for activity directors and social workers; clarify the social service, advance directives, and clinical records requirements; and correct references. During the comment period, the department received five comments to the proposed standards. The department is responding individually to all comments on the proposed standards. COMMENT: Regarding sec.19.502(b)(1)(B), one commenter questioned whether the federal regulations recognize therapeutic recreation specialists as qualified activities professionals. RESPONSE: The department has been assured by a representative of the Health Care Financing Administration (HCFA) that a therapeutic recreation specialists would be recognized as an activities professional. The department sees no reason to changes the proposed wording; accordingly no change was made. COMMENT: Concerning sec.19.502(d), one commenter objected to the last sentence which requires an in-depth activities assessment, if indicated by the Resident Assessment Instrument (RAI) and/or the resident's need. The commenter stated that the requirement is redundant to the comprehensive plan of care and assessment which is already required. RESPONSE: The department's intention in adding this language is to emphasize to the nursing facility (NF) staff that merely completing an RAI does not fulfill the requirement for an activities assessment if the resident's condition indicated the need for more of an in-depth assessment. Because the language is provided as guidance to the NFs, the additional sentence has not been deleted. COMMENT: Concerning sec.19.503(a)(2), one commenter objected to the addition of the term "qualified" in reference to social worker because it is not federally required, and it would add a substantive cost to the program. RESPONSE: The department acknowledges that this change is not a federal requirement; however, it is the department's position that the size of a NF should not determine the level of qualifications of its employees. This change would not require any additional hours of social services in smaller NFs. It would require, however, that a social worker in a NF of 120 beds or less meet the same qualifications as a social worker in a NF of over 120 beds. The cost for meeting the higher level of qualifications is estimated to be negligible. No change was made. COMMENT: Concerning sec.19.503(a)(2), a commenter asked whether social workers who were grandfathered at the bachelor's level until 1985 would be excluded from working in NFs by this change. RESPONSE: The department does not want to prevent social workers who were certified through a grandfather process in 1985 at the bachelor's degree level. The wording has been changed to allow those grandfathered social workers to continue consulting/working. COMMENT: One commenter objected to the second sentence in sec.19.504(b) as being nebulous and unenforceable. RESPONSE: The department agrees and a change has been made. Commenters included individuals, as well as representatives of the Texas Health Care Association. All commenters were generally in favor of the rules, however, they made specific suggestions for change. The amendment is adopted under the Health and Safety Code, Chapter 242, which provides for the Board of Health to promulgate rules relative to its licensing authority for long term care facilities; sec.12.001, which provides the Texas Board of Health with the authority to adopt rules for the performance of every duty imposed by law on the Texas Board of Health, the Department, and the Commissioner of Health; and Senate Bill 487, sec.8, 71st Legislature, Regular Session, 1989, which provides the Department and TDHS with the authority to jointly develop one set of standards for nursing homes that applies to licensure and to certification for participation in the medical assistance program under Chapter 32, Human Resources Code, and to adopt by rule the standards and any amendments to them. sec.145.111. Standards for Nursing Homes Jointly Developed by the Texas Department of Health and the Texas Department of Human Services that apply to Licensure and Medicaid Certification. (a) The Texas Department of Health adopts by reference the Texas Department of Human Services rules 40 TAC, sec. sec.19.1-19.2216, concerning Long Term Care Nursing Facility Requirements for Licensure and Medicaid Certification effective October 8, 1990, as amended: October 1, 1990, under federal mandate; September 1, 1991; March 17, 1992; April 1, 1992 under federal mandate; March 3, 1992 under federal mandate; April 1, 1992 and August 26, 1992, under federal mandates; February 1, 1993; and May 15, 1993. (b) (No change.) 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 23, 1993. TRD-9320746 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: May 15, 1993 Proposal publication date: January 12, 1993 For further information, please call: (512) 834-6770) Part II. Texas Department of Mental Health and Mental Retardation Chapter 405. Client (Patient) Care Subchapter K. Deaths of Persons Served by TXMHMR Facilities or Community Mental Health and Mental Retardation Centers 25 TAC sec.sec.405.261-405.268, 405.271-405.274 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts the repeal of sec.sec.405.261-405.274, concerning client deaths. The sections would be replaced by new sec. sec.405.261-405.279, concerning deaths of persons served by TXMHMR facilities or community mental health and mental retardation centers, which is contemporaneously adopted for public comment in this issue of the Texas Register. No comments were received regarding adoption of the repeals. The purpose of the repeal is to allow for the adoption of new sections which would provide more comprehensive guidelines for the review of deaths of persons served by the department and community centers. The repeals are adopted under Texas Civil Statutes, Article 5547-202, which provides the Texas board of Mental Health and Mental Retardation with rulemaking powers. sec.405.261. Purpose. sec.405.262. Application. sec.405.263. Definitions. sec.405.264. Action Taken Upon Death of a Client on Facility Grounds. sec.405.265. Certificate of Death. sec.405.266. Disposition of Deceased Clients. sec.405.267. Autopsy. sec.405.268. Action Taken Upon the Death of a Client off Facility Grounds. sec.405.271. Disposition of the Property of Deceased Clients. sec.405.272. Death Review Committee; Review of a Client Death. sec.405.273. Distribution. sec.405.274. References. 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 22, 1993 TRD-9320629 Ann Utley Chairman Texas Department of Mental Health and Mental Retardation Effective date: June 1, 1993 Proposal publication date: January 5, 1993 For further information, please call: (512) 465-4670 25 TAC sec.sec.405.261-405.279 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts amendments to sec.sec.405.261-405.279, concerning deaths of persons served by TXMHMR facilities or community mental health and mental retardation centers. Section 405.261 and sec.sec.405.263-405.276 are adopted with changes to the proposed text as published in the January 5, 1993, issue of the Texas Register (18 TexReg 106). Sections 405.262, 405.277, and 405.279 are adopted without changes and will not be republished. The amendments are adopted contemporaneously with the adoption of the repeal of the subchapter they would replace, known as Chapter 405, Subchapter K, concerning client deaths. In sec.401.463, the definition of "death review" has been replaced with definitions of "administrative death review" and "clinical death review." The definition of "TXMHMR" has been added and the definitions of "attending physician" and "investigating officer" have been clarified. Clarifying language has been added to sec.405.264 and redundant procedures have been deleted. Additionally, clarifying language has been added to sec. sec.405.265-405. 268. The title of sec.405.267 has been changed from "Facility Campus-Based Programs and Facility Community-Based Services: Statutory Requirements" to "Facility Campus-Based Programs: Statutory Requirements" to more clearly describe the content. Additionally, the title of sec.405.268 has been changed from "Community Centers: General Guidelines Upon Death of a Person Served" to "Facility Community-Based Services and Community Centers: General Guidelines Upon Death of a Person Served" to more clearly reflect the content. Section 405.269 contains examples of the types of deaths which should be reviewed according to this subchapter. Section 405.270 and sec.405.274 define the clinical death review committee as a peer review body whose status is considered confidential pursuant to applicable state statutes. In sec.405.271 and sec.405.272, the 14 calendar day timeline has been changed to seven working days; guidelines have been provided for making the determination that a clinical death review is needed; and a provision has been included which allows for a preliminary administrative death review to proceed. The title of sec.405.271 has been changed from "Facility Campus-Based Programs and Facility Community-Based Services: Clinical Death Review Determination" to "Facility Campus-Based Programs: Clinical Death Review Determination" to more clearly describe the content. Additionally, the title of sec.405.272 has been changed from "Community Centers: Clinical Death Review Determination" to "Facility Community-Based Services and Community Centers: Clinical Death Review Determination" to more clearly reflect the content. Also, the language has been modified in sec.405.272 for clarification because of the title change. Section 405.271 and 405.272 regarding clinical death review determinations and sec.405.273 and sec.405.274 regarding clinical death reviews, have been modified to follow a more parallel process between facilities and community centers. The same sections require the CEO to be responsible for forwarding information to the administrative death review committee when a clinical death review committee has been determined to be unnecessary. Additionally, a summary of the preliminary investigation information, instead of the preliminary investigation information, will be forwarded to the administrative death review committee when a clinical death review has been determined to be unnecessary. Section 405.274 and sec.405.275 provide for the designation of a chair by the CEO for the clinical death review committee and the administrative death review committee, respectively. Section 405.275 allows for the administrative death review committee to request a second clinical death review if information presented during the administrative death review indicates the need. Regarding subsection (g), the CEO or designee has been designated as the responsible party for ensuring the summary of resulting action taken in response to the recommendations of the clinical and administrative death review committees is forwarded to the TXMHMR medical director. Section 405.274 requires the investigating officer to be a member of the clinical death review committee and allows for the inclusion of the community center CEO and/or director of clinical quality assurance as members of the committee. Additionally, the investigating officer, rather than the entire committee, would provide the elements to be reviewed by the clinical death review committee. Section 405.276(a) includes language which requires reporting of systemic issues emerging from death reviews annually, rather than routinely, and more often if deemed appropriate and necessary. Also, the language regarding the reporting of systemic issues has been clarified. The language in Exhibit A has been changed to more appropriately reflect the intent. Exhibit B has been modified to reflect the changes in the amended sections. Written comments were received from the Texas Council for Community Mental Health and Mental Retardation Centers, Austin; Advocacy, Inc., Austin; Mental Health Association in Texas, Austin; Executive Council of the Nurse Practice Organization, Austin; Concho Valley MHMR, San Angelo; Brazos Valley MHMR, Bryan; Abilene Regional MHMR, Abilene; Life Management MHMR, El Paso; Lubbock Regional MHMR, Lubbock; Harris County MHMRA, Houston; Deep East Texas Regional MHMR, Lufkin; Texas Panhandle MHMR, Amarillo; Tarrant County MHMR, Fort Worth; and a private citizen. The Texas Mental Health Consumers "applauds the spirit of commitment shown by TXMHMR in working with the community to develop a rule governing deaths of persons served that is sensitive to the needs of the community." The director of governmental affairs for the Association for Retarded Citizens, Texas writes, "I believe ARC/Texas can support these proposals. It appears that they fairly reflect the results of our previous discussions." Three commenters noted that their community centers already had death review committees in place and the creation of additional committees would be an unrealistic and unnecessary burden. The department responds that the two separate committees were designed to ensure the confidentiality of the clinical death review as well as to provide an opportunity to review non-clinical issues surrounding a death. The membership of the clinical death review committee for community centers has been expanded to allow some community centers to use their existing committees. Four commenters expressed concern about the cost of implementing the rules with specific regard to committee apparatus, investigative regulations, reporting functions, and soliciting a physician external to TXMHMR to participate in the clinical death review. The department responds that the cost of implementing this rule is insignificant when compared to the cost of legal proceedings which may occur when a death is not reviewed appropriately or correcting action has not taken place. In an effort to "open up the process, " the requirement to solicit physicians external to the system was mutually agreed upon by the department and several advocacy organizations. The benefits of such external representation outweigh the cost of obtaining it. One community center commenter questioned where the funds would come from to perform the autopsies which were required in the rule. The department responds that language has been changed to require autopsies only when appropriate. The funds to perform such autopsies would come from the community center if the community center were responsible for the medical care of the deceased or from the county if the county coroner ordered the autopsy. One commenter noted that the rules for persons served by TDMHMR facilities are more stringent than the rules for persons served by community MHMR centers. The commenter does not believe the deaths of persons served by community centers should have less safeguards or scrutiny than the deaths of persons served by TDMHMR facilities. The department responds that certain procedural allowances have been made for community centers since they must work with private providers and have limited control over certain situations. However, community centers are required to conduct appropriate death reviews, provide written recommendations, and act on those recommendations just as facilities must do. The ultimate objective of this rule is to use every opportunity to improve the quality of care. Even in the absence of this rule, this objective is currently being met at a great majority of the community centers statewide. The same commenter noted that the rule does not address the parent of a minor or legal guardian's right to have access to all information regarding the death of their family member served by TDMHMR as ruled by the Texas Attorney General in 1992 concerning a death at a state school. The commenter believes family members should have access to the clinical and administrative death review reports. The department responds that the clinical death review is considered confidential pursuant to the statutes that authorize peer review activities in the State of Texas. The administrative death review is not necessarily considered confidential. Confidential information is not available to the public through the Texas Open Records Act. The commenter should note that sec.sec.405.264(a)(5), 405.265(b), and 405.266(b), provide for family notification, which includes an explanation of the circumstances surrounding the death and that they be informed of their right to examine the decedent's medical information relevant to the death, death certificate, and autopsy findings, if any. Six commenters expressed concern about the confidentiality of the clinical death review process. The department responds that there will be no loss of privileged communication. The clinical death review is considered confidential because the members are directed to only discuss clinical issues and the committee is not asked to submit a "report" of its deliberations, findings, or minutes to a non-clinical review body. The clinical death review committee is, however, asked to submit written recommendations to the administrative death review committee, and those recommendations may be discoverable. These recommendations should not contain specific details which could be considered confidential. Language has been modified in sec.405.274 for clarification. One commenter noted that the rule will make it more difficult to secure the services of psychiatrists and other physicians in community centers because of the increase of liability and malpractice risks. The commenter expressed concern that the rule did not address the potential liability risks of external participants. The department responds that, rather than making it more difficult to secure the services of psychiatrists and other physicians in community centers, this policy would provide those individuals additional assurance that the TXMHMR system is striving to provide services consistent with medical standards of practice. One commenter felt the requirement to do two reviews was excessive and wanted the department to consider one review in every case that would combine clinical and administrative personnel. The department responds that the two separate committees were designed to ensure the confidentiality of the clinical death review as well as to provide an opportunity to review non-clinical issues surrounding a death. The clinical death review can only address clinical issues if it is to retain its confidential status. The administrative death review committee can address all other issues related to the death. One community center commenter requested specifics regarding legal issues surrounding a death review. The department responds that the Texas Health and Safety Code, Chapter 595, as well as the community center's legal counsel could provide the guidance requested. Two commenters still have concerns that the delineation of clinical and administrative processes may prove difficult when establishing the scope of the committees. The department responds that the definition of the two review processes, the membership for the two committees, and their functions are described in the rule. Technical questions regarding the establishment of the committees can be directed to the Office of Medical Support Services at TXMHMR Central Office. One commenter expressed concern that the inclusion of an external medical professional in the clinical death review committee and "a representative of the public external to TXMHMR" in the administrative death review committee will jeopardize confidentiality, as well as the attorney-client work product or party communication privilege. The department responds that the membership of a medical peer review committee alone does not jeopardize the confidentiality of that committee. Confidentiality can be destroyed when non-clinical issues are discussed or if confidential information is shared with a non-clinical peer review body. A representative of the public on the administrative death review committee could not jeopardize the confidentiality of that committee because the committee may not be considered a peer review committee protected by law. One commenter noted that sec.405.261 reads as if their community center was responsible for reviewing deaths of all consumers served by contractors even if they were not consumers of their community center or TXMHMR consumers. The department responds that this section claims responsibility to the person who is the TXMHMR client. The key element is "services" as it relates to the "person." The purpose of this rule applies to improving the quality of care for any TXMHMR client, regardless of who is providing the services for them. Another commenter requested that sec.405.261 include the terminology "committee" after "medical peer review" to allow for protection from discovery to the extent the law provides. The department agrees and language has been added to reflect this commenter's concern. Three commenters requested the definition for "death review" be separated into "clinical death review" and "administrative death review." The department has provided the separate definitions. A commenter expressed concern that the definition of "attending physician" was too narrow for community centers. The department responds by broadening the definition to include psychiatric care as requested. The same commenter noted that the definition of "investigating officer" was too narrow. The department responds by broadening the definition to reflect the commenter's concern. Another commenter wondered how practical it was for the investigating officer to be a physician or nurse. The department responds that since the investigating officer is required to assist in the determination of the need for a clinical death review, only a medical professional, such as a physician or nurse, has the expertise to fulfill the requirements of an investigating officer. One commenter felt that by the definition of "unusual circumstances" it would be difficult to determine when a death is consistent with the definition. The department responds that the definition of "unusual circumstances" is based in law and suggests the commenter seek legal counsel when a determination is in question. Another commenter noted that the definition of "unusual circumstances" states "within 24 hours of admission to the facility" which excludes deaths within 24 hours of admission to a community center program. The department responds by adding "/community center" after the word "facility." One commenter suggested modifying the language in sec.405.264(a)(1) and (2) to address a more appropriate action for nurse and physician notification and information gathered. The department agrees and language has been added to reflect the commenter's concerns. One commenter noted that certain criteria were required when a registered nurse could pronounce a person dead in sec.405.264(a)(4)(A)(i) and (v) and suggested TXMHMR Central Office provide the minimum criteria or guidelines. The department responds that it is unnecessary for TXMHMR Central Office to outline criteria since laws and standards provide criteria. One commenter suggested a physician would be more appropriate to request an autopsy in sec.405.264(a)(5). The department agrees and language has been added to designate a physician be the person responsible for requesting consent to conduct an autopsy. A commenter noted that the undefined term "TXMHMR" was used within the text of the rule. The department responds by defining the term. One commenter expressed concern about transmitting confidential data, Death of a Person Served form, Exhibit A, via fax to a wrong number or it being inadvertently intercepted inappropriately. The commenter also suggested deleting items #3 and #4 from the form because of its sensitive nature. The department responds that the faxed information is transmitted directly into the personal computer of the director of medical support services at TXMHMR Central Office and its confidentiality is assured. Additionally, items #3 and #4 are no more or less confidential than the other information on the form. Regarding transmission to the incorrect fax number, the department suggests dialing the fax phone number carefully. One commenter suggests that the separate death review procedures referred to in sec.405.265(a) be reviewed and on file with the TXMHMR deputy commissioner or designee. The department responds that this requirement is unnecessary because the death review procedures are a part of a facility's internal quality assurance procedures which is reviewed internally, by TXMHMR Central Office Standards and Quality Assurance, and by external accreditation and certification entities. Five commenters requested clarification of the language "dies on the premises or while participating in a community center sponsored activity" in sec.405.266(a). The department responds with clarifying language which is further clarified in sec.405.269 with examples. Four commenters expressed concern over the inappropriateness of the CEO requesting an autopsy in sec.405.266(b). The department responds that clarifying language has been added designating a physician to request consent to conduct an autopsy. One commenter expressed concern that the language in sec.405.266(b) regarding "an explanation of the circumstances surrounding the death" was too subjective and suggested adding limiting guidelines which constitutes a proper explanation. The department responds that language has been modified to state: "provide an explanation of the relevant facts related to the death." Two commenters believe the information given to the primary or emergency correspondent in sec.405.266(b) is in violation of the deceased person's right to confidentiality. The department responds that the statutes the commenter cited, the Texas Health and Safety Code, sec.611.004(a)(5) for persons with mental illness and sec.595.003(a)(4) for persons with mental retardation, provides for the release of confidential client information upon death to the deceased's personal representative. Language has been added clarifying the primary or emergency correspondent as the personal representative. One commenter requested clarification of the "primary or emergency correspondent." The department responds that the primary or emergency correspondent is the person the client designates as their personal representative or the person who is to be contacted in the case of an emergency. One commenter suggested more appropriate language for items #1 and #2 in Exhibit A. The department agrees and the suggested language has been added. Three commenters noted that the requirement to obtain and amend a death certificate in sec.405.268(a) is not appropriate in all circumstances. The department agrees and language has been modified to reflect the commenters' concern. Two commenters suggested allowing for the provision of "a designee" to conduct a preliminary review as described in sec.405.269. The department responds that this is a highly important function and should be the ultimate responsibility of the facility/community center CEO. A commenter asked how the rule would interface in situations in which the death review would conflict with other reviews and investigations, such as in a contracted hospital inpatient facility. The department responds that the rule should in no way conflict with other reviews and investigations. There may, however, be certain elements and information which might be unobtainable because of where the individual died. Nevertheless, the death reviews as described in this rule must be conducted with or without the unobtainable information. Four commenters requested guidelines for determining which types of death would require an administrative death review. The department responds by adding examples of the types of deaths which would require a review. One commenter suggested using the word "met" instead of "true" in sec.405. 269(b) and (c) as well as adding the requirement to document that the preliminary review was conducted if the death was determined to not need an administrative death review. The department agrees and the language has been modified and added to reflect the commenter's concerns. A commenter suggested requiring a pharmacist, external to TXMHMR, to participate in the clinical death review routinely or at least when there would be indications that the death involved the use of medication. The department responds that the rule allows for the inclusion of "other medical/nursing professionals" in the clinical death review. Requiring an additional external participant would create an undue financial burden. Three commenters requested criteria for determining whether or not to conduct a clinical death review in sec.405.271 and sec.405.272. The department responds by providing criteria. One commenter found the title of sec.405.272 very confusing compared to the text. The commenter states: "It is entitled `Clinical Death Review Determination,' but (a) states that `Upon notification of a death requiring an administrative review...' Should this say `clinical review' or should the title be changed to `Administrative and Clinical Death Review Determination'? Also, some instructive language should be stated referring to sec.405.273 and sec.405.274 as the process for conducting a clinical review once the need is determined under sec.401.271 and sec.405.272." The department responds that the section is titled "Clinical Death Review Determination" because it describes the process in determining whether a clinical death review will be conducted. The determination for an administrative death review was described in sec.405. 269. Once the determination for an administrative death review has been made, then the next step is to determine the need for a clinical death review. That determination is described in this section. The instructive language referring to the process for conducting a clinical death review has been added to reflect this commenter's concern. Regarding sec.405.272(a), a commenter questioned if there were any conflicts of interest situations which should be avoided because smaller community centers may have only one physician and/or nurse to review entries they have made. The department responds that any major conflict of interest has been addressed in the modification of the definition of "investigating officer." Two commenters stated that most community centers do not have many medical personnel to accomplish the task of effectively investigating all deaths for the purpose of determining whether a clinical death review committee should convene and preparing a report of the cursory review. The department acknowledges the difficulty some community centers may have regarding this requirement. The responsibility of TXMHMR, of which community centers are a part, is to do everything in its power to improve quality of care. A death review would provide an opportunity to improve quality of care. Therefore, the department feels that the opportunity created to improve the quality of care justifies the personnel time and/or expense that death reviews may incur. Regarding sec.405.272(a), a commenter questioned whether the investigating officer would change with each death review, or could the CEO appoint one person to be the investigating officer for a duration of one or two years. The department responds that, as long as the conditions of this rule are met, the CEO may designate whomever he/she deems appropriate as the investigating officer and for any duration. Regarding the reporting of suspected abuse or neglect in sec.405.273(b), one commenter suggested language designating the chair of the clinical death review committee to be responsible for ensuring that suspected abuse or neglect be reported. The department responds that all elements for reporting suspected abuse or neglect have been established and it would be unnecessary to add language in this rule designating a certain person that responsibility. Two commenters expressed concern that there was not a nominal procedure for automatically notifying the Texas Department of Protective and Regulatory Services of the review of a client death. The department responds that notifying the Texas Department of Protective and Regulatory Services of a client's death would be inappropriate since the agency has authority to investigate only cases involving alleged abuse and/or neglect. One commenter questioned the need for three medical/nursing professionals to form the clinical death review committee as required in sec.405.274(b). The department responds that three clinical staff are necessary to adequately and objectively address clinical issues related to a death. Regarding the solicitation of a medical/nursing professional external to TXMHMR as required in sec.405.274(b), one commenter stated: "...the presence of an outsider may lead staff to conceal some information which they would otherwise divulge if they were talking only to their fellow employees. If TXMHMR feels that an outsider will somehow `keep us honest,' their thinking is quite naive, and the outsiders will have just the opposite effect. If the people in Austin want the centers to learn more effectively from their client deaths, there are much better ways to accomplish this than to station an outside `policeman' on these committees." The department responds that after extensive negotiations, the external representation was mutually agreed upon by the department and several advocacy organizations. The intent is to "open up the process," since community centers serve a vulnerable population utilizing public funds. Furthermore, the external representative was not included to ensure honesty, but to add objectivity. A commenter requested clarification on the issue of employee versus contractual as stated in sec.405.274(b). The department responds that an employee of a community center receives a salary and benefits from a community center. A physician who contracts with a community center enters into a contract with a community center which directs the exchange of money with services provided. This subsection of the rule indicates that a contracted physician can be considered a "...medical professional whom is neither an employee of the community center nor..." If a contracted physician agrees to serve on the clinical death review committee, then the requirement to solicit external membership has been satisfied and the center has been successful in attaining external membership. One commenter suggested language be added to sec.405.274(b) clarifying that the clinical death review committee is considered a medical peer review committee protected and allowed by state law. The department agrees and language has been added to reflect this commenter's concern. A commenter felt the cumbersome review process in sec.405.274 would take a considerable amount of time if every committee member reviewed all the relevant records, death certificates, autopsies, etc., and finally participated in the development of the recommendations to be forwarded to the administrative death review committee. The department responds that the section has been restructured to address the majority of the commenter's concerns. However, this does not negate the clinical death review committee's responsibility to conduct a review of the quality and appropriateness of the medical and nursing care given prior to death utilizing the information provided by the investigating officer. Nor does it absolve the committee from formulating written recommendations as specified in the rule. The same commenter expressed concern that, with the limited medical/nursing staff at community centers, some personnel would be put in the position to review his/her own work and could hardly be considered unbiased in the deliberations and recommendations. The department responds that it understands this could possibly happen in smaller community centers. Major conflicts of interests can be avoided by the modification of the definition of "investigating officer," requiring the investigating officer to be a member of the clinical death review committee, and requiring a total of three medical/nursing professionals to be on the clinical death review committee (one of whom should be external to the community center). One commenter stated that it is difficult enough attracting medical professionals for paid positions in their community center much less soliciting external medical professionals in an unpaid capacity. The commenter also stated that it would be difficult for their community center to establish a clinical death review committee because of their limited medical staff and, to normalize their services, they usually utilize medical services in the community. The department responds that the rule does not require the external medical/nursing professional to serve without monetary compensation. Additionally, the rule does not limit the clinical death review committee membership to community center employees. All members of the clinical death review committee may be external. A commenter asked if the 52 day timeframe in sec.405.274(c) was adequate when an autopsy was not available on a local basis. The department responds that sec.405.274(e) allows for the extension of the designated timeframes when necessary. In sec.405.275(a), one commenter suggested adding the phrase "or designee" after "CEO." The department responds that this is an important function and should be the responsibility of the CEO. Also, the CEO is expected to be a member of the administrative death review. A commenter expressed concern that by having a representative of the public external to TXMHMR, the proceedings of the administrative death review committee would not be protected. The department responds that the administrative death review committee may not be considered a peer review body and probably does not have protection under the law, regardless of its membership. Regarding sec.405.275(b)(1), one commenter questioned if an additional physician, other than the one who served on the clinical death review committee, was required for the administrative death review committee. The department responds that an additional physician is not necessary. The same physician may serve on both committees. In sec.405.275(b)(2), a commenter felt a representative of the public external to TXMHMR was a good idea but would be very difficult to comply with. The department responds that language will be added to require the solicitation of a representative of the public external to TXMHMR. If such a person cannot be found, then documentation of the search must be submitted to the TXMHMR medical director along with the other elements of the administrative death review. Additionally, the department suggests contacting the Disability Policy Consortium in Austin which may be helpful in attracting community representation throughout the state. Also regarding the representative of the public external to TXMHMR on the administrative death review committee, a commenter asked if permission from the deceased person's family was necessary in order to discuss client-identifying information with someone external to TXMHMR. The department responds that the Texas Health and Safety Code, sec.611.004, allows for the disclosure of a client's confidential information to persons acting as representatives of the agency. One commenter asked what the basis was for the difference in the number of days when an autopsy was performed in terms of when the death review could convene and when recommendations were required. The department responds that the performance of an autopsy usually delays the process, thus the need for an extension in those cases. The difference in the number of days provides time for the designated task to be accomplished. In sec.405.275(f)(4), one commenter felt that if their community center submitted the required "probable final diagnosis, including contributory causes, and reasons for variance from the death certificate, if available" then it would be an admission of legal liability by the community center made in an open record. The department responds that it is not always possible to know the exact final diagnosis without an autopsy. Also, the community center is not responsible for what a private physician documents on a death certificate. Sometimes a death review clarifies reasons for variances from the death certificate and the documentation of the variances would not be an admission of wrongdoing. One commenter suggested adding language to sec.405.275(g) requiring the submission of a copy of the original recommendations along with the summary of resulting action. The department responds that this is unnecessary since the original recommendations were already submitted within the previous 28 calendar days. Two commenters suggested adding language which would define the routine basis on which the TXMHMR medical director would report systemic issues emerging from death review to the Texas Board of MHMR. The department agrees and language has added to reflect the commenters' concern. One commenter expressed concern that the requirement of community center CEOs to report systemic issues emerging from death review to their board of trustees would be ineffective because the CEO would be unwilling to reveal delicate information during an open meeting. The department responds that this requirement was not designed to provide a occasion to reveal delicate information regarding deaths but to serve as a public assurance that deaths are being reviewed and opportunities for improvement in the quality of care are being pursued. Two commenters felt that the title of Exhibit B as "operating instructions" violated the integrity and independence of community centers. The department responds that the rule does not mandate community centers follow the requirements of Exhibit B. The operating instructions were developed to aid in the implementation of the rule. It contains the same information as the rule in an easier-to-read format. The operating instructions were developed as a curtesy and applies to community centers only to the extent that they choose to follow it. The new sections are adopted under the Texas Health and Safety Code, sec.532. 015 (Texas Civil Statutes, Article 5547-202, sec.2.11), which provide the Texas Department of Mental Health and Mental Retardation with rulemaking authority. sec.405.261. Purpose. The purpose of this subchapter is to provide clinical peer review committee procedures and, separately, administrative review committee procedures to be followed upon the death of a person receiving services directly operated or contracted for by a facility of the Texas Department of Mental Health and Mental Retardation or a community mental health and mental retardation center, and their respective contract providers, in order to improve the quality of care. sec.405.263. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Administrative death review-An administrative/quality assurance review activity to identify non-clinically related problems requiring correction and opportunities to improve the quality of care. Attending physician -A physician licensed to practice medicine in the State of Texas who is responsible for the general medical care and/or psychiatric care of the person served. Chief executive officer or CEO-The superintendent or director of a state facility or the executive director of a community center. Clinical death review-A clinical quality assurance/peer review activity conducted to identify clinically related problems requiring correction and opportunities to improve the quality of care pursuant to the statutes that authorize peer review activities in the State of Texas. Community center -A community mental health and mental retardation center organized pursuant to the Texas Health and Safety Code, Title 7, Chapter 534, sec.053 (formerly the Texas Mental Health and Mental Retardation Act, sec.3, as amended, Texas Civil Statutes, Article 5547-201 et seq). Contract provider -An entity which, through written agreement or contract, is providing services to a person served by a facility or a community center, including entities regulated by other governmental agencies. Deceased-A person who, at death, is receiving services directly operated or contracted for by a facility or community center. Department-The Texas Department of Mental Health and Mental Retardation. Duty physician -The physician designated by the chief executive officer to handle medical care or emergencies outside regular working hours. Facility-Any state hospital, state school, state center, or other entity which is now or may hereafter be made a part of the department. Facility community-based services-Community service residential and nonresidential programs under the jurisdiction of a facility. Investigating officer -A physician or registered nurse who is neither the attending physician nor anyone significantly involved as the primary provider of treatment to the deceased immediately preceding the death. Person in charge -The employee designated as supervisor for a dorm, ward, or other program or residence area. Registered nurse -A nurse licensed by the Texas Board of Nurse Examiners to practice professional nursing in the State of Texas. TXMHMR-The Texas Department of Mental Health and Mental Retardation, including facilities and community MHMR centers. Unusual circumstances -A death which occurs under circumstances including, but not limited to, the following: unnatural death; death by unlawful means or suspicion of death by unlawful means; absence of witnesses; suicide or suspicion of suicide; or death within 24 hours of admission to the facility/community center. sec.405.264. Facility Campus-Based Programs: Actions Taken upon the Death of Person Served. (a) Death occurring on facility grounds. (1) When a death occurs, the person in charge shall immediately notify a registered nurse or, if readily and physically available, the attending or duty physician. (2) The person in charge or registered nurse, as appropriate, shall perform the following activities and document them in the person's record: (A) the date, time, and location where the person was found, and any information given by other individuals who were present at the time of death; (B) the name of the physician notified, the time and date of notification, and the name of the employee making notification; (C) the names of persons who observed the person dying or who found the person; (D) any treatment immediately prior to death and any emergency procedures initiated; and (E) complete and/or update the Client Injury/Incident Report if the death was related to an injury. (3) The attending or duty physician shall: (A) identify, examine, and pronounce the person dead (see paragraph (4) of this subsection); (B) make notation of: (i) the date, the time, and if known, the probable cause of death; (ii) any treatment immediately prior to death and any emergency procedures initiated; and (iii) any information given by other individuals who were present at the time of death; (C) determine whether the death occurred under unusual circumstances and whether the cause of death is uncertain; and (D) perform the following activities or delegate them and ensure completion and documentation: (i) notify the facility CEO or the administrative duty officer and the chairperson of the death review committee; (ii) if the cause of death is uncertain or if the death occurred under unusual circumstances, immediately notify the appropriate justice of the peace or county medical examiner and request an inquest; and (iii) arrange for the notification of a funeral home of the family's and/or guardian's choice to which the deceased is to be released. (4) In some cases, a registered nurse may pronounce a person dead and determine the date and time of death. In such instances, the registered nurse must ensure the accurate documentation of the requirements indicated in paragraph (2) of this subsection. (A) In order for a registered nurse to pronounce a person dead the following conditions must be met: (i) the registered nurse is privileged, in writing, by the facility to pronounce a person dead; (ii) the person is classified either in Category II or Category III according to Subchapter C of this chapter (relating to Life-Sustaining Treatment); (iii) the person is not being treated with artificial means of supporting the respiratory and circulatory system; (iv) the cause of death is determined not to be uncertain or to have occurred under unusual circumstances; (v) the facility has a written policy and procedure, jointly developed and approved by the nursing staff and medical staff, governing the practice of registered nurses pronouncing death. (B) The registered nurse shall complete the activities described in paragraph (3)(D)(i) and (iii) of this subsection. (C) When a registered nurse has pronounced a person dead, a physician shall within 24 hours ensure the completion of the appropriate activities described in paragraph (3)(D) of this subsection and complete the death certificate. (5) The facility CEO or designee shall notify the deceased's personal representative (primary or emergency correspondent(s)) of the death; provide an explanation of the relevant facts related to the death; and inform them of their right to examine the deceased's medical information relevant to the death, death certificate, and autopsy findings, if any. A physician shall request consent to conduct an autopsy when appropriate. (6) The attending or duty physician, as appropriate, shall complete the Report of the Death of a Person Served form, which herein is adopted by reference as Exhibit A, copies of which may be obtained by contacting TXMHMR, Office of Policy Development, P.O. Box 12668, Austin, Texas 78711. Within one working day of each death, the facility CEO shall be responsible for ensuring the completed reporting form (Exhibit (A)) is faxed to the Office of Medical Support Services, Central Office, which shall be responsible for immediately transmitting the information to the appropriate deputy commissioner. The facility CEO should also initiate direct phone contact with the appropriate deputy commissioner or designee when warranted. (b) Death occurring off facility grounds. Death occurring off facility grounds shall be reported as required in subsection (a)(5) and (6) of this section and reviewed as required in sec.405.269 of this title (relating to Facility Campus- Based Programs, Facility Community-Based Services, and Community Centers: Administrative Death Review Determination). sec.405.265. Facility Community-Based Services: Actions Taken Upon the Death of Person Served. (a) Each facility community-based services shall develop separate clinical peer review and administrative review procedures consistent with this subchapter to be implemented at the time a determination has been made to conduct a death review. (b) When appropriate, the facility CEO or designee shall notify the deceased's personal representative (primary or emergency correspondent(s)) of the death; provide an explanation of the relevant facts related to the death; and inform him or her of his or her right to examine the deceased's medical information relevant to the death, death certificate, and autopsy findings, if any. A physician shall request consent to conduct an autopsy when appropriate. (c) Immediately after determination of the need to conduct an administrative death review, the facility CEO shall be responsible for ensuring that the completed reporting form (sec.405.264 of this title (relating to Facility Campus-Based Programs: Actions Taken Upon the Death of Person Served) as Exhibit (A)) is faxed to the Office of Medical Support Services, Central Office, which shall be responsible for immediately transmitting the information to the appropriate deputy commissioner. The facility CEO should also initiate direct phone contact with the appropriate deputy commissioner or designee when warranted. sec.405.266. Community Centers: Actions Taken Upon the Death of Person Served. (a) Each community center shall develop separate clinical peer review and administrative review procedures consistent with this subchapter to be implemented at the time that a determination has been made to conduct a death review. (b) When appropriate, the community center CEO or designee shall notify the deceased's personal representative (primary or emergency correspondent(s)) of the death; provide an explanation of the relevant facts related to the death; and inform them of their right to examine the deceased's medical information relevant to the death, death certificate, and autopsy findings, if any. A physician shall request consent to conduct an autopsy when appropriate. (c) Immediately after determination of the need to conduct an administrative death review, the community center CEO shall be responsible for ensuring that the completed reporting form (attached to sec.405.264 of this title (relating to Facility Campus-Based Programs: Actions Taken Upon the Death of Person Served) as Exhibit A) is faxed to the Office of Medical Support Services, Central Office, which shall be responsible for immediately transmitting the information to the appropriate deputy commissioner. The community center CEO should also initiate direct phone contact with the appropriate deputy commissioner or designee when warranted. sec.405.267. Facility Campus-Based Programs: Statutory Requirements. (a) Certificate of death. A certificate of death is required for every death which occurs in the state. A copy of the certificate of death shall be made a part of the deceased's record. Any additional findings that would reflect on the information contained in the original certificate should be amended and refiled as required and a copy retained in the deceased's record. (1) The individual responsible for interment or for removal of the body of the deceased for disposition is responsible for obtaining and filing the certificate of death. (2) Medical certification of death will be made by the appropriate physician. The certificate of death shall document the disease(s), injuries, or complications that caused the death rather than the mode of dying, e.g., cardiac arrest, respiratory arrest, shock, heart failure, etc. (b) Autopsy. An autopsy is recommended whenever possible and appropriate, providing that appropriate consent can be obtained. Whenever an autopsy is performed, the autopsy reports shall be made a part of the deceased's record. (1) The physician must request permission for an autopsy and document the request in the deceased's record when: (A) the death occurred under unusual circumstances or the cause of death is uncertain; or (B) the autopsy would clarify the diagnosis and efficacy of treatment choices. (2) Consent for autopsy will be deemed sufficient when obtained under the provisions of Texas Code of Criminal Procedures, Article 49.13, and TXMHMR Operating Instruction 405-K, Deaths of Persons Served, which herein is adopted by reference as Exhibit B, copies of which may be obtained by contacting TXMHMR, Office of Policy Development, P.O. Box 12668, Austin, Texas 78711. (3) The person from whom consent for autopsy is sought shall be given an explanation of what an autopsy is and why an autopsy is appropriate or desirable. (c) Disposition of deceased persons. If burial at public expense is necessary, or if the body of the deceased is not claimed for burial, a report to that effect must be made to the Anatomical Board of the State of Texas. (1) If burial is to take place at no expense to the state, e.g., prepaid burial contract or designated funds in the deceased's trust fund, then a report need not be made to the Anatomical Board provided the body is claimed. (2) To claim the body for burial, an individual must provide documentation to the facility CEO which proves the individual is: (A) related to the deceased by blood or marriage; (B) a bona fide friend; or (C) representative of an organization of which the deceased was a member. (3) If efforts to contact the family and/or guardian of the deceased prove futile, a report must be made to the Anatomical Board. (4) If the family and/or guardian is notified of the death, but the body remains unclaimed 48 hours after the notification, a report must be made to the Anatomical Board. (5) If the body of the deceased is released to the Anatomical Board, the facility CEO or designee must file with the county clerk an affidavit that a diligent inquiry was made to find the family and/or guardian of the deceased. The affidavit will detail the manner of the attempts at notification. A copy of the affidavit will be retained in the deceased's record. (d) Disposition of the property of deceased persons. When appropriate, the property of the deceased will be disposed of under the provisions of the Texas Probate Code. When no claim is made, the property of the deceased, including clothing, personal effects, and trust funds, shall be disposed of under the provisions of the Texas Health and Safety Code, sec.sec.551.003, 551.004, 551.005 and 551.044 (formerly Texas Civil Statutes, Article 3183c). sec.405.268. Facility Community-Based Services and Community Centers: General Guidelines Upon Death of a Person Served. (a) When a death has been determined to require an administrative death review, a copy of the certificate of death shall be made a part of the deceased's record, when possible. (b) When appropriate, the property of the deceased will be disposed of under the provisions of the Texas Probate Code. sec.405.269. Facility Campus-Based Programs, Facility Community-Based Services and Community Centers: Administrative Death Review Determination. (a) Within one working day of the knowledge of death of a person receiving services in a TXMHMR-funded or TXMHMR-contracted program, the facility or community center CEO is responsible for conducting a preliminary review to determine whether: (1) the death occurred on the premises of a TXMHMR-funded or TXMHMR- contracted program, (e.g., the individual dies in his/her sleep at a MHA/MRA funded group home); (2) the death occurred while the person was participating in TXMHMR-funded or TXMHMR-contracted program activities, (e.g., the individual dies in a community hospital after being transferred from the facility/community center; the individual drowns while on a psychosocial program outing; the individual dies while absent from a facility on a home visit); (3) other conditions indicate that the death may reasonably have been related to the individual's care or activities as part of the facility community-based or community center program, (e.g., the individual overdoses on a psychoactive drug; the individual commits suicide); or (4) other conditions indicate that although the death is not reasonably related to the individual's care or activities as part of the facility community-based or community center program, an evaluation of policy is warranted, (e.g., the individual dies of a chronic illness in a community hospital). (b) If none of the conditions described in subsection (a) of this section is met, then the facility or community center CEO may elect not to conduct an administrative death review. Documentation that this preliminary review was conducted must be included in the deceased's record. (c) If any of the conditions described in subsection (a) of this section are met, an administrative death review must be conducted in compliance with sec.405.269 of this title (relating to Facility Campus-Based Programs, Facility Community-Based Services and Community Centers: Administrative Death Review Determination). In addition, the need for a clinical death review must be determined as described in sec.405. 271 of this title (relating to Facility Campus-Based Programs and Facility Community-Based Services: Clinical Death Review Determination) or in sec.405. 272 of this title (relating to Community Centers: Clinical Death Review Determination). sec.405.270. Facility Campus-Based Programs and Facility Community-Based Services: Clinical Death Review Committee. (a) Each facility shall maintain a clinical death review committee which shall be a medical peer review body pursuant to the statutes that authorize peer review activities in the State of Texas. The clinical death review committee shall be responsible for reviewing deaths and the quality of care delivered prior to each death reviewed by that committee. (b) The purpose of the committee is: (1) to review the quality and appropriateness of medical care and other medically related services rendered prior to the death; and (2) to recommend, when appropriate, changes in medically related policy and procedure, professional education, clinical operations, or patient care. (c) The clinical death review committee shall be chaired by a physician and include representatives of the following functions listed which in some circumstances may be staffed by the same individual, e.g., the clinical/medical director may be the attending physician as well: (1) the clinical/medical director or designee, who shall serve as chair provided that person is not the attending physician (the facility CEO will appoint a replacement chair when the chair of the clinical death review committee is the attending physician); (2) the investigating officer; (3) the director of nursing or registered nurse designee; (4) the attending physician; (5) the director of clinical quality assurance, designee, or the person who is responsible for clinical quality assurance functions; and (6) other medical/nursing professionals as deemed appropriate by the committee chair, e.g., the duty physician at the time of the death, etc. (d) The clinical death review committee shall solicit a physician external to TXMHMR to participate as a member of the clinical death review committee. If such physician is not available, then the effort to obtain external membership must be documented in the information sent to the administrative death review committee. For the purposes of this subchapter, physicians who are consultants or contractors are considered external to TXMHMR. sec.405.271. Facility Campus-Based Programs: Clinical Death Review Determination. (a) Upon notification of a death requiring an administrative death review, the chairperson of the clinical death review committee shall appoint a member of the clinical death review committee or a qualified medical/nursing professional from outside the facility to serve as an investigating officer as defined in this subchapter. The investigating officer must be either: (1) a physician (M.D. or D.O.); or (2) a registered nurse. (b) After appointment, the investigating officer shall begin a preliminary investigation based upon the deceased's medical record and other information he/she deems appropriate. (c) Within five working days of the knowledge of death, the appropriate physician shall complete a death/discharge summary for the medical record. The death/discharge summary shall include: (1) identifying information, including: (A) name; (B) case number; (C) date of birth; (D) sex; (E) date and type of most recent admission; and (F) date, time, and location of death; (2) a summary of the medical history; (3) a summary of active medical problems; (4) significant recent laboratory and procedural findings; (5) a summary of recent pertinent medical consultations; (6) clinical factors leading up to the terminal event and a review of the clinical circumstances surrounding the death, or circumstances leading to the transfer to another facility or outpatient status where death occurred, i.e., all pertinent notes, procedures, medications, resuscitation category status, and pertinent quality of life issues; (7) preliminary autopsy findings, if available; and (8) additional clinically related information which may be furnished by other staff. (d) Within seven working days of the knowledge of death, the facility CEO, chair of the clinical death review committee, and investigating officer shall use the preliminary investigation information and the death/discharge summary to determine whether the death should be reviewed clinically, in compliance with sec.405.273 of this title (relating to Facility Campus-Based Programs and Facility Community-Based Services: Clinical Death Review). (1) The determination shall be based upon the possible need for review of clinical policies and procedures, the opportunity for professional education, and/or the opportunity to improve patient care through medical practice. (2) It shall also be determined whether a preliminary administrative death review should proceed prior to the completion of the clinical death review, addressing the issues described in sec.405.275(c)(2) of this title (relating to Facility Campus-Based Programs, Facility Community-Based Services, and Community Centers: Administrative Death Review) or should be deferred until the submission of the recommendations of the clinical death review committee. (3) The deliberations and findings of a preliminary administrative death review will be considered at the final administrative death review after receipt of the recommendations of the clinical death review committee. (e) If it has been determined that a clinical death review is unnecessary, then the facility CEO shall be responsible for forwarding to the administrative death review committee the following: (1) a summary of the preliminary investigation information; (2) a copy of the death/discharge summary; (3) a copy of the death certificate, bearing a valid diagnosis, if available; (4) a copy of the preliminary or full autopsy report, if available; and (5) the probable final diagnosis, including contributory causes, and reasons for variance from the death certificate, if any. sec.405.272. Facility Community-Based Services and Community Centers: Clinical Death Review Determination. (a) Upon notification of a death requiring an administrative death review, the community center CEO or designee, or, for facility community-based services, the chair of the clinical death review committee, shall appoint a physician or registered nurse as the investigating officer, as defined in this subchapter, who shall begin a preliminary investigation based upon the deceased's medical record, particularly the circumstances leading to the transfer to another facility or outpatient status where death occurred, and other information he/she deems appropriate. (b) Within seven working days of the knowledge of death, the CEO, and the investigating officer, and additionally for facility community-based services, the chair of the clinical death review committee, shall use the preliminary investigation information to determine whether the death should be reviewed clinically, in compliance with sec.405.274 of this title (relating to Community Centers: Clinical Death Review). (1) The determination shall be based upon the possible need for review of clinical policies and procedures, the opportunity for professional education, and/or the opportunity to improve patient care through medical practice. (2) It shall also be determined whether a preliminary administrative death review should proceed prior to the completion of the clinical death review, addressing the issue described in sec.405.275(c)(2) of this title (relating to Facility Campus-Based Programs, Facility Community-Based Services, and Community Centers: Administrative Death Review) or should be deferred until the submission of the recommendations of the clinical death review committee. (3) The deliberations and findings of a preliminary administrative death review will be considered at the final administrative death review after receipt of the recommendations of the clinical death review committee. (c) If it has been determined that a clinical death review is unnecessary, then the CEO shall be responsible for forwarding to the administrative death review committee the following: (1) a summary of the preliminary investigation information; (2) a copy of the death/discharge summary, if available; (3) a copy of the death certificate, bearing a valid diagnosis, if available; (4) a copy of the preliminary or full autopsy report, if available; and (5) the probable final diagnosis, including contributory causes, and reasons for variance from the death certificate, if any. sec.405.273. Facility Campus-Based Programs and Facility Community-Based Services: Clinical Death Review. (a) Upon determination of the need for a clinical death review, the investigating officer shall provide to the clinical death review committee: (1) the individual's medical record; (2) a copy of the death certificate, bearing a valid diagnosis (may not always be available for facility community-based services); (3) a copy of the preliminary or full autopsy report, if available; and (4) the probable final diagnosis, including contributory causes, and reasons for variance from the death certificate, if any; and (5) a briefing of possible issues involving clinically related facility operational policies and procedures and quality of medical care. (b) Within 14 calendar days (or 45 days in which an autopsy is performed, or for deaths occurring at medical facilities off campus) of the determination of the need for a clinical death review, the clinical death review committee shall meet to review the death/discharge summary, the deceased's medical record, and the information the investigating officer has provided as described in subsection (a)(1)-(4) of this section. On the basis of the review, the committee shall evaluate the quality of medical and nursing care given prior to death and shall formulate written recommendations, if appropriate, for changes in policy and procedures, professional education, operations, or patient care. Suspected abuse or neglect must be reported in accordance with the rules of the Texas Department of Protective and Regulatory Services. (c) Within 21 calendar days of the determination of the need for a clinical death review (or 52 days in cases in which an autopsy is performed, or for deaths occurring at medical facilities off campus), the clinical death review committee shall submit to the administrative death review committee the following: (1) the clinical death review committee's recommendations; (2) a copy of the death/discharge summary (may not always be available for facility community-based services); (3) a copy of the death certificate, bearing a valid diagnosis (may not always be available for facility community-based services); (4) the probable final diagnosis, including contributory causes, and reasons for variance from the death certificate, if any; and (5) documentation of the effort to obtain a physician external to TXMHMR to participate as a member of the clinical death review committee, if no such physician was available. (d) To maintain the effectiveness of the death review process, the TXMHMR medical director or designee may conduct reviews of each facility's clinical death review process. (e) The facility CEO is authorized to grant variances from the timelines by this section on a case-by-case basis. Reasons for timeline variances must be justified and documented. sec.405.274. Community Centers: Clinical Death Review. (a) Each community center shall develop and implement procedures consistent with this subchapter for the timely reporting and review of deaths. (b) Deaths subject to a clinical death review will be reviewed by a medical peer review committee pursuant to the statutes that authorize peer review activities in the State of Texas, consisting of the previously appointed investigating officer and at least two other medical/nursing professionals (M. D., D.O., or R.N.), one of which should be a medical professional whom is neither an employee of the community center nor was the deceased's attending physician (if such medical professional is not available, then the effort to obtain external membership must be documented in the information sent to the administrative death review committee). Of these three committee members, all must be either medical doctors or registered nurses. The community center CEO shall appoint one of the three medical/nursing professionals as chair of the clinical death review committee. For the purposes of this subchapter the term employee does not refer to consultants or contractors. Additionally, the membership of the clinical death review committee may include the community center CEO and/or the director of clinical quality assurance, designee, or the person who is responsible for clinical quality assurance functions. (1) Upon determination of the need for a clinical death review, the investigating officer shall provide to the clinical death review committee: (A) the individual's medical record; (B) a copy of the death certificate, bearing a valid diagnosis, if available; (C) a copy of the preliminary or full autopsy report, if available; and (D) the probable final diagnosis, including contributory causes, and reasons for variance from the death certificate, if any; and (E) a briefing of possible issues involving clinically related community center operational policies and procedures and quality of medical care. (2) Within 14 calendar days (or 45 days in which an autopsy is performed, or for deaths occurring at medical facilities to which the person was transferred prior to death) of the determination of the need for a clinical death review, the clinical death review committee shall meet to review the information the investigating officer has provided as described in subsection (b)(1) of this subsection. On the basis of the review, the committee shall evaluate the quality of medical and nursing care given prior to death and shall formulate written recommendations, if appropriate, for changes in policy and procedures, professional education, operations, or patient care. Suspected abuse or neglect must be reported in accordance with the rules of the Texas Department of Protective and Regulatory Services. (c) Within 21 calendar days of the determination of the need for a clinical death review (or 52 days in cases in which an autopsy is performed, or for deaths occurring at medical facilities to which the person was transferred prior to death), the clinical death review committee shall submit to the administrative death review committee the following: (1) the clinical death review committee's recommendations; (2) a copy of the death/discharge summary, if available; (3) a copy of the death certificate, bearing a valid diagnosis, if available; (4) the probable final diagnosis, including contributory causes, and reasons for variance from the death certificate, if any; and (5) documentation of the effort to obtain an external medical professional, if no such person was available. (d) To maintain the effectiveness of the death review process, the TXMHMR medical director or designee may conduct reviews of the community center's clinical death review process. (e) The community center CEO is authorized to grant variances from the timelines by this section on a case-by-case basis. Reasons for timeline variances must be justified and documented. sec.405.275. Facility Campus-Based Programs, Facility Community-Based Services, and Community Centers: Administrative Death Review. (a) The facility or community center CEO shall convene an administrative death review committee: (1) immediately after the determination of the need for an administrative death review, if a clinical death review was not conducted; (2) when a preliminary administrative death review is to take place as determined in sec.405.271(d) or sec.405.272(b) of this title (relating to Facility Campus-Based Programs: Clinical Death Review Determination; Facility Community Based-Services and Community Centers: Clinical Death Review Determination); or (3) immediately after the receipt of the information from the clinical death review committee as described in sec.405. 273(c) or sec.405.274(c) of this title (relating to Facility Campus-Based Programs and Facility Community-Based Services: Clinical Death Review; Community Centers: Clinical Death Review). (b) The membership of the administrative death review committee shall consist of: (1) three senior administrative and medical personnel, (e.g., CEO, medical director, director of nursing, director of quality assurance, etc.) one of whom shall be designated as the chair by the CEO; (2) a representative of the public, external to TXMHMR and not related to or associated with the deceased, (e.g., a member of the public responsibility committee, a member of the facility or community hospital's Ethics Committee, a family member, an advocate, a consumer, etc.). If such representative of the public is not available, then the effort to obtain external membership must be documented in the information sent to the TXMHMR medical director; and (3) other individuals appropriate to the death being reviewed, (e.g., the investigating officer). (c) The purpose of the administrative death review committee is to: (1) review the information and recommendations provided by the clinical death review committee and/or from the preliminary investigation; (2) review operational policies and procedures and continuity of care issues which may have affected the care of the individual and formulate written recommendations for changes in policies and procedures, if appropriate; and (3) act upon the recommendations described in paragraphs (1) and (2) of this subsection. (d) If information presented during the administrative review indicates the need for a clinical death review or a re-review, then the administrative death review committee has the authority to request such review. (e) Suspected abuse or neglect must be reported in accordance with the rules of the Texas Department of Protective and Regulatory Services. (f) Within 14 calendar days of the determination of the need for an administrative death review (or 45 days in cases in which an autopsy is performed, or for deaths occurring at medical facilities off campus or for deaths occurring at medical facilities to which the person was transferred prior to death) or within 14 calendar days after the receipt of the information from the clinical death review committee, the administrative death review committee shall submit the following elements to the TXMHMR medical director (who shall forward a copy to the appropriate deputy commissioner): (1) a copy of the death/discharge summary, if available; (2) a copy of the death certificate, bearing a valid diagnosis, if available; (3) a copy of the preliminary or full autopsy report, if available; (4) the probable final diagnosis, including contributory causes, and reasons for variance from the death certificate, if any; (5) a copy of the clinical death review committee's recommendations, if such review was conducted; (6) a copy of the administrative death review committee's recommendations; and (7) if applicable, documentation of the effort to obtain external membership for the clinical death review committee and/or the administrative death review committee, if no such medical professional and/or representative of the public was available. (g) A summary of the resulting actions taken in response to the recommendations of the administrative and clinical death review committees shall be forwarded by the CEO or designee to the TXMHMR medical director (who shall forward a copy to the appropriate deputy commissioner), within 28 calendar days following the submission of the elements contained in subsection (f)(1)-(7) of this section. sec.405.276. Reporting of Systemic Issues Emerging From Death Reviews. (a) Utilizing information gathered from the elements submitted by the administrative death review committees and reviews of facility and community center's clinical death review process, the TXMHMR medical director shall report to the Texas Board of Mental Health and Mental Retardation any systemic issues emerging from death reviews, on a routine basis at least annually and more often as deemed appropriate and necessary. (b) Utilizing information gathered from the elements listed in sec.405.275(f)(6) and (g) of this title (relating to Facility Campus-Based Programs, Facility Community-Based Services, and Community Centers: Administrative Death Review), the community center CEO shall report to the community center's board of trustees any systemic issues emerging from death reviews and the corrective actions taken, on a routine basis or when necessary. 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 22, 1993. TRD-9320630 Ann Utley Chairman Texas Department of Mental Health and Mental Retardation Effective date: June 1, 1993 Proposal publication date: January 5, 1993 For further information, please call: (512) 465-4670 TITLE 34. PUBLIC FINANCE Part X. Texas Public Finance Authority Chapter 225. Master Equipment Lease Purchase Program, Series B 34 TAC sec.sec.225.1, 225.3, 225.5, 255.7 The Texas Public Finance Authority adopts new sec.sec.225.1, 225.3, 225.5, and 255.7, concerning the Master Lease Purchase Program, without changes to the proposed text as published in the December 22, 1992, issue of the Texas Register (17 TexReg 9012). These sections define certain terms pertaining to the operation of the Program under Series B, identify the responsibilities of various parities in administering the program under Series B, and establish basic procedures under which equipment users may participate in the Program under Series B. The Program will result in interest rate savings for the State estimated to be 2.0% for each piece of equipment financed hereunder or $5 million to $2 million for each year. No comments were received regarding adoption of the new sections. The new sections are adopted under Texas Civil Statutes, Article 601d, which provide the Texas Public Finance Authority with the authority to issue and sell obligations for a lease or other agreement concerning equipment and to promulgate rules for establishing the requirements for agencies wishing to use the program. 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 24, 1993. TRD-9320771 Anne L. Schwartz Executive Director Texas Public Finance Authority Effective date: April 14, 1993 Proposal publication date: December 22, 1992 For further information, please call: (512) 463-5544 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part XVI. Interagency Council on Sex Offender Treatment Chapter 510. Sex Offender Treatment Provider Registry 40 TAC sec.510.2, sec.510.3 The Interagency Council on Sex Offender Treatment adopts the repeals of sec.510.2 and sec.510.3, concerning the Sex Offender Treatment Provider Registry, without changes to the proposed text as published in the February 16, 1993, issue of the Texas Register (18 TexReg 1023). The Council is repealing these rules to replace them with new sections which define new application and renewal fees for providers. Rules for fees are repealed and replaced by new fee requirements. No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Civil Statutes, Article 4413(51), sec.13 and sec.15, which provide the Interagency Council on Sex Offender Treatment with the authority to set reasonable fees for registration. 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, 1993. TRD-9320555 Eliza May, MSSW, CSW Executive Director Interagency Council on Sex Offender Treatment Effective date: April 9, 1993 Proposal publication date: February 16, 1993 For further information, please call: (512) 454-1314 The Interagency Council on Sex Offender Treatment adopts new sec.510.2 and sec.510.3, concerning the Sex Offender Treatment Provider Registry, without changes to the proposed text as published in the February 16, 1993, issue of the Texas Register (18 TexReg 1024). The Council is adopting new rules concerning fees paid by Registered Sex Offender Treatment Providers. Providers will pay an application fee of $100 and renewal fee of $50. No comments were received regarding adoption of the new sections. The new sections are adopted under Texas Civil Statutes, Article 4413(51), sec.13 and sec.15, which provide the Interagency Council on Sex Offender Treatment with the authority to set reasonable fees for registration. 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, 1993. TRD-9320556 Eliza May, MSSW, CSW Executive Director Interagency Council on Sex Offender Treatment Effective date: April 9, 1993 Proposal publication date: February 16, 1993 For further information, please call: (512) 454-1314