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 V. General Services Commission Chapter 111. Executive Administration Division 1 TAC sec.111.4 The General Services Commission adopts the repeal of sec.111.4, concerning breach of ethical standards, without changes to the proposed text as published in the October 6, 1992, issue of the Texas Register (17 TexReg 6845). The section is repealed to be replaced with new sec.111.4. The section is replaced with a new sec.111.4 which more clearly sets forth prohibited conduct of employees and vendors. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Civil Statutes, Article 601b, which provide the General Services Commission with the authority to promulgate rules necessary to accomplish the purpose of the Article. 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 30, 1993. TRD-9321015 Judith M. Porras Director of Legal Information and Human Resources General Services Commission Effective date: April 20, 1993 Proposal publication date: October 6, 1992 For further information, please call: (512) 463-3583 The General Services Commission adopts new sec.111.4, concerning ethical standards, with changes to the proposed text as published in the October 6, 1992, issue of the Texas Register (17 TexReg 6845). The section is necessary to provide guidance concerning required ethical standards of conduct of employees and vendors. The section sets forth prohibited actions for employees and vendors, and provides procedures for preventing and remedying prohibited actions, and penalties. No comments for or against the section were received. The one comment received questioned whether the phrase "any matter" contained in sec.111.4(c) may be broader than "particular matter" defined in Texas Civil Statutes, Article 6252- 9b. No one commented for or against the section. However, the Texas Department of Transportation submitted a question on the meaning of "any matter." "Any matter" signifies a particular matter in which a former employee participated during his or her employment; there is no meaningful distinction between the two phrases. Additionally, the agency has reconsidered and deleted proposed subsections (b)(5) and (d)(2). The new section is adopted under Texas Civil Statutes, Article 601b, which provide the General Services Commission with the authority to promulgate rules necessary to accomplish the purpose of the Article. sec.111.4. Ethical Standards. (a) This section states the ethical standards of conduct required of commission employees, vendors, potential vendors, and employees of other agencies when acting under authority delegated from the commission. (b) An employee may not: (1) participate in work on a commission contract knowing that the employee, or member of their immediate family has an actual or potential financial interest in the contract, including prospective employment; (2) solicit or accept anything of value from an actual or potential vendor; (3) be employed by, or agree to work for, a vendor or potential vendor; (4) knowingly disclose confidential information for personal gain. (c) A former employee who had a pay classification of Group 17, Step 1 or higher may not represent or receive compensation concerning any matter in which the former employee participated during his or her employment with the state. (d) A vendor or potential vendor may not: offer, give, or agree to give an employee anything of value. (e) When an actual or potential violation of subsections (b)-(d) is discovered, the person involved shall promptly file a written statement concerning the matter with an appropriate supervisor. The person may also request written instructions and disposition of the matter. (f) If an actual violation of subsections (b)-(d) occurs or is not disclosed and remedied, the employee involved may be either reprimanded, suspended, or dismissed. The vendor or potential vendor may be barred from receiving future contracts and an existing contract may be canceled. 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 30, 1993. TRD-9321014 Judith M. Porras Director of Legal Information and Human Resources General Services Commission Effective date: April 20, 1993 Proposal publication date: October 6, 1992 For further information, please call: (512) 463-3583 Chapter 113. Central Purchasing Division 1 TAC sec.sec.113.1-113.18 The General Services Commission adopts new sec.sec.113.1-113.18, concerning purchasing. Section 113.11 is adopted with changes to the proposed text as published in the December 15, 1992, issue of the Texas Register (17 TexReg 8785). Sections 113.1-113.10, and 113.12-113.18 are adopted without changes and will not be republished. The sections are necessary to state purchasing procedures to implement Texas Civil Statutes, Article 601b, sec.3, for guidance to other agencies and vendors. The sections provide definitions and procedures applicable to: requisitions, competitive bidding, competitive sealed proposals, bidding preferences, contract administration, delegated purchases, higher education research purchases, purchases from the Texas Department of Criminal Justice, invoicing and payment, term contracts, open market contracts, multiple awards, purchases for school districts, unsolicited proposals, and information technologies purchases. Six state agencies submitted written comments. Five commenters expressed support for the sections and requested technical clarifications or additional definitions. One commenter requested technical clarification on various points only; and one commenter asked that the threshold for delegated purchasing authority be increased to $25,000. Commenting in favor of the new sections were UT Health Science Center; San Antonio; Sam Houston State University; UT Health Science Center, Houston; Texas Department of Human Services; and Texas Department of Transportation. The agency disagrees that additional clarification is necessary with respect to sec.113.1. These provisions are applicable to other agencies to the extent specific purchases are delegated under sec.113.11. Definitions deleted from sec.113.2 will be included in Chapter 111 to apply to all contracts under Texas Civil Statutes, Article 601b. A time limit should not be imposed for the receipt of requisitions under sec.113.3 because this would unnecessarily hinder agencies' purchases. Whether sec.113.3(d) continues to be necessary must be clarified by statute; until this is addressed by the legislature, the section must be retained. Section 113.4 authorizes agencies to use all or a portion of the commission's bidders' list as its own; additional clarification is not deemed to be necessary. Faxing IFBs to vendors is not authorized by statute and is therefore not addressed in the sections. Some of the preferences in sec.113.8 apply only to break ties; these are indicated by the requirements for equal cost and quality. The tiebreaker preference for Texas residents supersedes the tiebreaker preference for DBEs. With respect to sec.113.11, the requirement that agencies solicit bids from their entire bid list, subject to the commission's waiver where warranted, is dictated by statute for purchases over $5,000. However, because the agency agrees that the bid list solicitation requirement for purchases over $5,000 may be unnecessarily burdensome, it amends sec.113.11(c)(4) to allow for waiver of soliciting an entire bid list for purchases of 25,000 or less. The section conforms to statute. As stated in sec.113.11(e)(5), purchases of items listed as publications may be made from the publisher directly. Distributor purchases under sec.113.11(e)(7) do not include all OEM equipment. The agency does not disagree that the delegated purchase amount of $10,000 may be unnecessarily low for some agencies. However, the agency disagrees that increasing this amount beyond $10,000 would be appropriate for all agencies. Also, sec.113.11(f) permits higher specific delegations upon the request of an agency and the commission's approval. For improved administrative efficiency, such requests will be ruled on by the executive director and determinations will be based on the agency's past compliance experience. Space modifications ancillary to higher education research purchases under sec.113.12 are not covered by this section. Quotations from the TDCJ alone are required under sec.113.13. Eleven days are required to process payments under sec.113.15 to insure agencies' bills are paid without incurring late charges under the Prompt Pay Act (Texas Civil Statutes, Article 601f.) The new sections are adopted under Texas Civil Statutes, Article 601b, sec.3, which provide the General Services Commission with the authority to promulgate rules to implement that article. sec.113.11. Delegated Purchases. (a) General delegation. The follow purchasing functions are delegated to agencies: (1) spot purchases; (2) emergency purchases; (3) purchases of perishable items; (4) purchases of services the estimated cost of which does not exceed $100,000; (5) purchases of publications directly from the publisher; (6) fuel, oil and grease purchases; and (7) distributor purchases. (b) Adherence to ethical standards. Employees of agencies who perform purchasing functions under delegated authority shall adhere to the same ethical standards required of commission employees, and shall avoid all conflict of interest in their purchasing activities. (c) Provisions generally applicable to delegated purchases. (1) Competitive bidding is not required for purchases of $1,000 or less. (2) All bids must be obtained from sources which normally offer for sale the merchandise being purchased. (3) Items purchased under delegated authority may not include scheduled items, items available under a term contract (unless purchased in quantities less than minimum ordering quantities shown in contract), or any item required by law to be purchased from a particular source. (4) agencies must solicit formal bids from all eligible vendors on the agency's bidders list when making purchases in excess of $5,000. However, for purchases of $25,000 or less, the commission may waive the requirement to solicit bids from all eligible vendors on the list if the agency certifies in writing that a solicitation of all eligible vendors is not warranted under the circumstances. (5) Large purchases may not be broken down into small purchases in order to meet dollar limits specified in these rules. The commission may not require unrelated purchases to be combined into one purchase order to exceed dollar limits specified in these rules. (d) Withdrawal of delegated purchase authority. The commission will verify compliance with established procedures and will withdraw delegated purchase authority from an agency for continued violations after giving adequate warning. (e) Provisions applicable to particular delegated purchases. (1) Spot purchases. Spot purchases may be made in accordance with the following provisions. (A) Agencies must attempt to obtain at least three informal bids, including a minimum of two bids from disadvantaged businesses (including at least one bid each from a minority-owned business and a woman-owned business), on all spot purchases in excess of $1,000 and not over $5,000. Agencies must attempt to obtain at least three formal bids, including a minimum of two bids from disadvantaged businesses (including at least one bid each from a minority-owned business and a man-owned business), on all spot purchases in excess of $5,000 and not over $10,000. Agencies may refer to the commission's Disadvantaged Business Enterprise Directory, which is maintained and accessible electronically, to locate disadvantaged businesses. If an agency is unable locate a minority-owned business and/or a woman-owned business from the commission's Disadvantaged Business Enterprise Directory or other available sources, the agency must make a written notation on the spot purchase form of all reference sources used. (B) All information required by the commission must be furnished on the approved spot purchase form. (2) Emergency purchases. The commission will approve payment for emergency purchases in accordance with the following provisions. (A) At least three informal bids must be obtained whenever possible on all purchases in excess of $5,000. (B) The emergency purchase file, when forwarded to the commission, must contain a full written explanation of the emergency along with other documentation required by the commission. (C) The agency may contact the commission for advice and assistance in the handling of emergency purchases. The commission may not approve an invoice for an emergency purchase unless the agency has complied with the foregoing requirements. This rule does not apply to purchases made in accordance with the Texas Disaster Act of 1975 (Texas Civil Statutes, Article 6889-7). (3) Perishable items. Purchases made under this authority must be obtained through competitive bids, and appropriate documentation must be forwarded to the commission for approval. (4) Services. Purchases of services estimated to cost no more than $100,000 per year are delegated and must be obtained through competitive bids, and appropriate documentation must be forwarded to the commission for approval. If an agency is certified under subsection (g) of this section, it is required to submit documentation only for proprietary purchases of services and for purchases expected to cost more than $25,000. For purchases of services estimated to cost more than $100,000 per year, the commission must review any proposed specifications or statements of work and determine whether the commission or the agency should make the advertisement and award. The commission may determine that the service should be advertised to the commission's bidders lists, in which case the commission will male the award in accordance with normal open market procedures. If no competitive advantage would be obtained by having the commission make the advertisement and award, the commission may permit the agency to do so. (5) Publications. An agency may purchase publications directly from the publisher when such publications are not available through statewide contract or through competitive bidding. Direct publication orders shall be made by following guidelines suggested by the commission. Examples of direct publications include but are not limited to: (A) foreign publications; (B) out-of-print or rare publications; (C) back issues of magazines, journals, and newspapers; (D) publications of professional societies; (E) prepared films, tapes, and discs (audio, visual, or both); (F) computer software; (G) collections of any of the foregoing items, and microfilm or microfiche copies of any of the foregoing items; and (H) Library of Congress cards. (6) Fuel, oil, and grease. An agency may make fuel, oil, and grease purchases at service stations or in bulk. Fuel, oil, and grease purchases shall be made by following guidelines suggested by the commission. Spot and emergency purchase procedures apply to purchases at service stations. (7) Distributor purchases. An agency may make distributor purchases by following guidelines suggested by the commission. An agency may not purchase any of the following on a distributor purchase basis: consumable items; labor of any kind (see "service"); "will fit" parts (non-OEM); parts for stock; contract items; electrical parts for electric motors; electrical switch panel boards; electrical accessories. (f) Specific Delegations. The commission may delegate purchasing functions to agencies for specific open market purchases only by approval of, he commissioners in open meeting. Requests for such approval should be made in writing to the executive director and signed by the chief executive officer of the requesting agency. All such requests should clearly set out the reasons and justifications for the request. (g) Requirements for certification of delegated authority. (1) Agencies are eligible for certification of delegated authority after maintaining a 90% compliance average or better, or a continuous six-month period. Notification of an agency's eligibility for certification will be made by the executive director of the commission to the agency head. An institution or other agency of higher education is eligible for immediate certification. (2) The certification of an institution or agency is subject to acceptance by the institution or agency, and requires he designation of a chief purchasing officer plus an alternate to act in the chief purchasing officer's absence. A copy of the signatures of the two designees must be provided to the commission. To accept certification, the chief purchasing officer must supply complete supporting documents for sample vouchers if the commission so requests. In addition, the commission is authorized to send a field auditor to the institution or agency purchasing office to conduct a compliance audit. (3) If an institution or agency is certified, the following statement signed by its chief purchasing officer must appear on or be attached to the duplicate copy of its payment vouchers: "I hereby certify that this payment complies with the statutes and all GSC rules and procedures pertaining to the delegation of purchasing authority." (A) Facsimile signatures on the certification statement are acceptable. (B) The institution's or agency's designated chief purchasing officer is responsible for compliance with the statutes and all commission rules and procedures. (h) Retaining, certification. (1) An institution or agency must maintain a minimal compliance level of 90% based upon commission sample audits to retain certification. (2) If an institution or agency falls below 90% compliance, the commission will notify the agency head and its chief purchasing officer of the deficiency and reason for non-compliance. The institution or agency will be placed on a three-month probationary period and required to take remedial action. Certification will be revoked if the institution or agency fails to rectify the deficiency during the probationary period. (3) The institution or agency may be recertified after it achieves 90% or better average compliance for a continuous six-month period. 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 30, 1993. TRD-9321013 Judith M. Porras Director, Legal Information and Human Resources Division General Services Commission Effective date: April 20, 1993 Proposal publication date: December 15, 1992 For further information, please call: (512) 463-3583 Chapter 123. Facilities, Planning, and Construction Prevailing Wage Rate Determination 1 TAC sec.sec.123.31-123.34 The General Services Commission adopts amendments to sec. sec.123.31, 123.33, 123.34, and new sec.123.32. The amendment to sec.123.31 is adopted with changes to the proposed text as published in the November 20, 1992, issue of the Texas Register (17 TexReg 8123). The amendments to sec.123.33 and sec.123.34 and new sec.123.32 are adopted without changes and will not be republished. The amendments and new section are necessary to state the procedure the commission will use to determine prevailing wage rates for construction contracts administered by the commission. The amendments and new section define wages, explain how the commission will obtain prevailing wage data, and state how such data is to be used. Four associations submitted written comments on one or more provisions of the sections. One comment was general and in support of the sections. Three commenters expressed concern as to how collective bargaining agreements would be considered. The commenters contend that bargaining agreements reflect wages rates that have been negotiated or proposed but not actually paid. Two commenters asked that "labor organizations and other interested parties" be deleted as sources of information on wages in a locality because labor organizations do not pay wages and the reported information cannot be verified. The same two commenters questioned the definition of wages; one commenter asked that the rules identify examples of fringe benefits instead of attempting to set forth an exhaustive list of fringes, and the other commenter asked that prospective bidders be given notice of the fringe benefits at the time the contract is advertised for bids. One commenter requested deletion of the requirement that a wage paid to more than 50% of reported workers will be the prevailing wage. This commenter also recommended that in the case of federal funding for a portion of a project, that the federal wage determination be used only for the portion of the project which is federally funded. Commenting in favor of the amendments was the Independent Electricals Contractors of Texas. Commenting against the amendments were the Associated General Contractor-Texas Building Branch; Associated Builders and Contractors of Texas, Inc.; AGC of Texas, Highway, Heavy, Utilities and Industrial Branch. The agency disagrees that a collective bargaining agreement can provide information on proposed or negotiated wages only. A collective bargaining agreement may be applicable to relevant construction projects; if so, it can and should be considered as a source of information on wages paid. The prevailing wage statute does not direct or restrict the agency's sources of information to employers only. The agency believes it is necessary to retain its ability to request and receive information about wages paid from any and all possible sources. The agency agrees with the comment concerning the need to clarify the definition of wages with respect to fringe benefits. In addition, the proposed definition inappropriately included unemployment and workers' compensation; these payments are mandated federal and state impositions and should not be included in a wage determination. The section is modified accordingly. Also, prospective bidders will be given notice of any fringe benefit inclusions at the same time they are given notice of the determined basic rate. The agency disagrees that the determinations of prevailing wages should be the weighted average in all cases rather than using the rate paid to 50% (or the weighted average of rates within a dollar, if paid to at least 50%) of the reported workers for two reasons: these procedures are in the existing sections and are not affected by the amendments; and a rate experienced in one-half or more of all cases logically amounts to a prevailing rate. Further, the agency disagrees with the request that the federal wage determination be applied to only that portion of a project which is federally funded; splitting projects into federal and state funded parts is administratively impractical. The amendments are adopted under Texas Civil Statutes, Article 601b, sec.5, which provide the General Services Commission with the authority to promulgate rules necessary to implement that article. sec.123.31. Prevailing Wage Rate. (a) The specifications and the contract for each project administered by the commission shall include a schedule of wages to be paid on the project. (b) The wage scale will reflect wages ascertained by the commission as prevailing in the locality of the project for each craft or type of worker required thereon and not less than this rate shall be paid by any contractor on the project. "Wages" means the basic hourly rate of pay plus payments made to or on behalf of employees for benefits such as health insurance, pension plans, death benefits, and vacation pay. (c) The determination made by the commission shall be final and will not be changed except as hereinafter provided. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on March 30, 1993. TRD-9321016 Judith M. Porras Director of Legal Information and Human Resources Division General Services Commission Earliest possible date of adoption: April 20, 1993 For further information, please call: (512) 463-3583 TITLE 22. EXAMINING BOARDS Part V. Texas State Board of Dental Examiners Chapter 101. Dental Licensure General Qualifications 22 TAC sec.101.1 The Texas State Board of Dental Examiners adopts an amendment to sec.101.1, concerning general qualifications, with changes to the proposed text as published in the February 23, 1993, issue of the Texas Register (18 TexReg 1128). The amendment is needed in order to ensure that applicants for dental licensure receive the highest standards and to assure that the people of the State of Texas receive the highest quality of dental care. Also, to allow access to dental licensure to as many applicants in order to serve the people of Texas. The amendment states the general qualifications for any person desiring to practice dentistry in the State of Texas. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 4544, sec.2, which provide the Texas State Board of Dental Examiners with the authority to adopt and enforce such rules and regulations not inconsistent with the laws of the State as may be necessary for the performance of its duties and/or to ensure compliance with the State laws relating to the practice of dentistry to protect the public health and safety. sec.101.1. General Qualifications. (a) Any person desiring to practice dentistry in the State of Texas must possess a license issued by the Texas State Board of Dental Examiners as required by law. (b) An applicant for licensure from the Texas State Board of Dental Examiners shall: (1) make written application to the Board for each examination to be taken requesting to take either the general dental examination or a specialty examination in the area of orthodontics, oral, and maxillofacial surgery, oral pathology, pediatric dentistry, periodontics, prosthodontics, endodontics, or public health. The application shall contain all information as required for a completed application. A completed application shall contain all documentation required except for proof of dental school graduation and proof of having passed the National Board Examination as detailed below. Proof of graduation and of passing the National Board Examination may be submitted as they are available, but they must be submitted prior to sitting for the examination. The completed application must be received by the Board office not later than 30 days prior to the announced examination date. Applications received by the Board office after the 30-day deadline will not be accepted for the scheduled examination date requested. Permission to transfer to a future scheduled examination or a request to receive a refund shall be granted only in the event of the applicant's failure to graduate from dental school or failure to pass the National Board examination. A written request for refund or transfer must be received prior to the applicant's assigned State Board examination date; (2) in the event of a question or dispute as to whether application has been made to the Board, applicant must provide a return receipt from certified mail of the United States Postal Service, or the application shall be deemed not to have been submitted to the Board; (3) present proof of graduation from a dental school accredited by the Commission on Dental Accreditation of the American Dental Association; (4) present proof of having passed the examination for dentists in its entirety given by the National Board of Dental Examiners; (5) present proof of successful completion of a current course in basic life support given by the American Heart Association or the American Red Cross prior to the applicant's examination for licensure; (6) pay an examination and licensure fee as required by law and the rules and regulations of the Board; and (7) satisfactorily pass either an oral, written, or clinical practical examination or any combination thereof as may be determined by the Board. (8) in addition to the above requirements, an applicant for specialty examination must meet the following additional requirements: (A) present proof of current dental licensure in good standing from any state; and (B) present proof of graduate training in the specialty area of requested examination by one of the following methods; (i) certificate of completion from a dental specialty program approved by the American Dental Association Commission on Dental Accreditation; (ii) documentation from the American Dental Association approved specialty Board that the Applicant was, at any time, recognized as "Board Eligible;" or (iii) proof of graduate training acceptable to the Texas State Board of Dental Examiners. 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 30, 1993. TRD-9321019 C. Thomas Camp Executive Director Texas State Board of Dental Examiners Effective date: April 21, 1993 Proposal publication date: February 23, 1993 For further information, please call: (512) 463-6400 Part XI. Board of Nurse Examiners Chapter 217. Licensure and Practice 22 TAC sec.217.1, sec.217.6 The Board of Nurse Examiners adopts amendments to sec.217.1 and sec.217.6, concerning licensure and practice, without changes to the proposed text as published in the January 29, 1993, issue of the Texas Register (18 TexReg 548). Article 4523(b) of the Nurse Practice Act states that the board may issue a permit to a graduate nurse (GN) of an approved educational program and that the GN must work under the direct supervision of an RN. However, direct supervision had not previously been defined. The adoption of these amendments will outline the board's interpretation of direct supervision. GN's and employers of GN's will know the type of supervision that is appropriate for the GN's practice, thus ensuring the public's protection by providing that experienced RNs are available to supervise the GN. As of the close of the comment period, three letters of support were received; one letter of concern was received. The commenter expressing concerns asked the board to consider the close proximity of the RN even when not on the same unit- for those practicing in rural hospitals. A public hearing was scheduled for March 23, 1993, however, no one appeared to testify either for or against the rules. Tarrant County Junior College District, Midland College, and the Victoria College commented in favor of the amendments. Goodall-Witcher Hospital Foundation was not opposed; however they were concerned with the rural hospital setting. The board did not disagree with commenters. The amendments are adopted under Texas Civil Statutes, Article 4514, sec.1, which provide the Board of Nurse Examiners with the authority to make and enforce all rules and regulations necessary for the performance of its duties and conducting of proceedings before it. 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 30, 1993. TRD-9321030 Louise Waddill, Ph.D., R.N. Executive Director Texas Board of Nurse Examiners Effective date: April 21, 1993 Proposal publication date: January 29, 1993 For further information, please call: (512) 835-8650 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part I. Texas Department of Public Safety Chapter 31. Standards for an Approved Motorcycle Operator Training Course 37 TAC sec.sec.31.1-31.8 The Texas Department of Public Safety adopts the repeals of sec.sec.31.1-31.8, concerning standards for an approved motorcycle operator training course, without changes to the proposed text as published in the February 9, 1993, issue of the Texas Register (18 TexReg 829). The department is repealing existing standards for an approved motorcycle operator training course to change language in order to comply with existing statutory requirements. The department is adopting repeal of these sections due to substantive amendments and additional sections. This action is being filed simultaneous with adopted of new sections concerning standards for an approved motorcycle operator training course. These sections contain provisions for student and teacher qualification and certification, course records and requirements, and suspension. No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Civil Statutes, Article 6701c-4, which provide the Texas Department of Public Safety with the authority to adopt rules that it determines are necessary to administer this article effectively. 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 15, 1993. TRD-9320951 James R. Wilson Director Texas Department of Public Safety Effective date: April 20, 1993 Proposal publication date: February 9, 1993 For further information, please call: (512) 465-2000 37 TAC sec.sec.31.1-31.11 The Texas Department of Public Safety adopts new sec. sec.31.1-31.11, concerning standards for an approved motorcycle operator training course, without changes to the proposed text as published in the February 9, 1993, issue of the Texas Register (18 TexReg 829). Adoption of these sections upgrades the standards to ensure the public of quality motorcycle operator training and expansion of the number of training facilities. The department is proposing new standards for an approved motorcycle operator training course due to substantive amendments and adding new sections. This action is filed simultaneous with a proposal for repeal of existing sections concerning standards for an approved motorcycle operator training course. The new sections promulgate standards for program sponsors, instructors, definitions, student admission requirements and verification of course completion by minors, approved motorcycle training courses, motorcycle training requirements, notice and hearing requirements, suspension, quality assurance visits, and notification of legal actions. No comments were received regarding adoption of the new sections. The new sections are adopted under Texas Civil Statutes, Article 6701c-4, which provide the Texas Department of Public Safety with the authority to adopt rules that it determines are necessary to administer this article effectively. 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 15, 1993. TRD-9320952 James R. Wilson Director Texas Department of Public Safety Effective date: April 20, 1993 Proposal publication date: February 9, 1993 For further information, please call: (512) 465-2000 Part IX. Texas Commission on Jail Standards Chapter 253. Definitions 37 TAC sec.253.1 The Texas Commission on Jail Standards adopts an amendment to sec.253.1, concerning definitions, without changes to the proposed text as published in the February 12, 1993, issue of the Texas Register (18 TexReg 921). Requirements were modified in classification and segregation standards last year to provide specific housing for inmates in "administrative segregation". Amendment will define administrative segregation for clarification. The amendment will define administrative segregation. No comments were received regarding adoption of the amendment. The amendment is adopted under the Government Code, Chapter 511, which provides the Texas Commission on Jail Standards with the authority to adopt reasonable rules and procedures establishing minimum standards for the custody, care, and treatment of prisoners. 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-9321028 Jack E. Crump Executive Director Texas Commission on Jail Standards Effective date: April 21, 1993 Proposal publication date: February 12, 1993 For further information, please call: (512) 463-5505 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 11. Food Distribution and Processing Food Distribution Program The Texas Department of Human Services (DHS) adopts amendments to sec.sec.11.103, 11.105, 11.6008, and 11.6009 in its Food Distribution and Processing chapter. The amendment to sec.11.105 is adopted with a change to the proposed text as published in the February 23, 1993, issue of the Texas Register (18 TexReg 1153). The amendments to sec. sec.11.103, 11.6008, and 11.6009 are adopted without changes and will not be republished. The justification for the amendments is to establish compliance with the requirements of the Single Audit Act as a condition of eligibility for participation in the Special Nutrition Programs, and to establish sanctions for noncompliance with the requirements of the Act. Also in this issue of the Texas Register, DHS is adopting related amendments in Chapter 12 of this title (relating to Special Nutrition Programs). The amendments will function by providing greater accountability for public funds. During the public comment period, DHS received no written comments regarding adoption of the amendments. However, the United States Department of Agriculture requested DHS to make one change to the text of sec.11.105(b)(1)(C). The reference to "claim month" is changed to "allocation period." 40 TAC sec.11.103, sec.11.105 The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 33, which provides the department with the authority to administer public and nutritional assistance programs. sec.11.103. Eligibility Determination for Recipient Agencies and Recipients. (a) The Texas Department of Human Services (DHS) determines the eligibility of recipient agencies to receive donated foods according to 7 Code of Federal Regulations sec.250.11. (b) DHS requires recipient agencies to submit documentation of compliance with the requirements of the Single Audit Act. Recipient agencies must submit as proof of eligibility one or more of the forms of documentation of compliance specified in paragraphs (1)-(3) of this subsection: (1) a copy of an organization wide audit which has been determined to meet the requirements of the Single Audit Act; (2) a copy of a contract or binding letter of engagement with an approved auditor to conduct an organization wide audit which will meet the requirements of the Single Audit Act; or (3) documentation that the recipient agency is not subject to the Single Audit Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 31, 1993. TRD-9321036 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: April 20, 1993 Proposal publication date: February 23, 1993 For further information, please call: (512) 450-3765 Emergency Food Assistance Program 40 TAC sec.11.6008, sec.11.6009 The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 33, which provides the department with the authority to administer public and nutritional assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 31, 1993. TRD-9321037 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: April 20, 1993 Proposal publication date: February 23, 1993 For further information, please call: (512) 450-3765 Chapter 12. Special Nutrition Programs Child and Adult Care Food Program The Texas Department of Human Services (DHS) adopts amendments to sec.sec.12.3, 12.24, 12.103, 12.121, 12.205, 12.209, 12.305, 12.309, 12.405, and 12.409, without changes to the proposed text as published in the February 23, 1993, issue of the Texas Register (18 TexReg 1155). The justification for the amendments is to establish compliance with the requirements of the Single Audit Act as a condition of eligibility for participation in the Special Nutrition Programs and to establish sanctions for noncompliance with the requirements of the Act. Also in this issue of the Texas Register, DHS is adopting related amendments in Chapter 11 of this title (relating to Food Distribution and Processing). The amendments will function by providing greater accountability for public funds. No comments were received regarding adoption of the amendments. 40 TAC sec.12.3, sec.12.24 The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 33, which provides the department with the authority to administer public and nutritional assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 31, 1993. TRD-9321038 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: April 20, 1993 Proposal publication date: February 23, 1993 For further information, please call: (512) 450-3765 Summer Food Service Program 40 TAC sec.12.103, sec.12.121 The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 33, which provides the department with the authority to administer public and nutritional assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 31, 1993. TRD-9321039 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: April 20, 1993 Proposal publication date: February 23, 1993 For further information, please call: (512) 450-3765 Special Milk Program 40 TAC sec.12.205, sec.12. 209 The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 33, which provides the department with the authority to administer public and nutritional assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 31, 1993. TRD-9321040 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: April 20, 1993 Proposal publication date: February 23, 1993 For further information, please call: (512) 450-3765 School Breakfast Program 40 TAC sec.12.305, sec.12.309 The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 33, which provides the department with the authority to administer public and nutritional assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 31, 1993. TRD-9321041 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: April 20, 1993 Proposal publication date: February 23, 1993 For further information, please call: (512) 450-3765 National School Lunch Program 40 TAC sec.12. 405, sec.12.409 The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 33, which provides the department with the authority to administer public and nutritional assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 31, 1993. TRD-9321042 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: April 20, 1993 Proposal publication date: February 23, 1993 For further information, please call: (512) 450-3765 Chapter 19. Long Term Care Nursing Facility Requirements for Licensure and Medicaid Certification Subchapter C. Resident Rights 40 TAC sec.19.217 The Texas Department of Human Services (DHS) adopts the repeal of sec.19. 217 and sec.19.504, adopts new sec.19.217 and sec.19.504, and adopts amendments to sec.sec.19.502-19.503, 19.1911, 19.1912, and 19.1923, concerning directives and durable powers of attorney for health care, activities, social services general requirements, social services process, contents of the clinical record, additional clinical record service requirements, and incident or accident reporting. New sec.19.217 and sec.19.504 and amended sec.19.503 are adopted with changes to the proposed text as published in the December 22, 1992, issue of the Texas Register (17 TexReg 9021). The repeal of sec.19.217 and sec.19. 504, and amendments to sec.sec.19.502, 19.1911, 19.1912, and 19.1923 are adopted without changes and will not be republished. The justification for the repeals, new sections, and amendments is to incorporate technical changes in the Long Term Care Nursing Facility Requirements which will make the intent of the rules clearer and more compatible with requirements of the Health Care Financing Administration (HCFA) . The repeals, new sections, and amendments will function by ensuring that the Long Term Care Nursing Facility Requirements are in full compliance with the Omnibus Budget Reconciliation Act of 1987. During the public comment period, DHS received comments from the Texas Health Care Association, two individuals who are nursing facility activities directors, and an individual who is a certified social worker. A summary of the comments and DHS's response to the comments follows: COMMENT: One commenter expressed support for the requirement stated in sec.19.502(c) that activity directors must complete eight hours of approved continuing education or equivalent continuing education units each year. The commenter recommended that DHS consider increasing the number of hours to "more like 12 to 15 hours per year." RESPONSE: Because of budgetary constraints, DHS is unable to further increase the hours of required in-service training for activity directors. COMMENT: One commenter requested an editorial change to add the word "staff" to sec.19.217(b)(5). RESPONSE: DHS has added the word "staff" needed to complete the sentence. COMMENT: Regarding sec.19.502(b)(1)(B), one commenter questioned whether the federal regulations recognize therapeutic recreation specialists. RESPONSE: DHS has been assured by a representative of the Health Care Financing Administration (HCFA) that a therapeutic recreation specialist would be recognized as an activities professional. Therefore, DHS is adopting the language as proposed. COMMENT: One commenter objected to the last sentence in sec.19.502(d), 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 considering that a comprehensive plan of care and assessment is already required. RESPONSE: DHS's intention in adding this language is to emphasize to the nursing facility staff that completing an RAI does not fulfill the requirement for an activities assessment if the resident's condition indicates the need for a more in-depth assessment. DHS has retained the language in the adopted rule because it provides needed guidance to nursing facility staff. COMMENT: One commenter suggested an editorial change to sec.19.503(a) to conform to the federal language. RESPONSE: The language as proposed conforms to the federal regulations. COMMENT: One commenter objected to the addition of the term "qualified" to the reference to social worker in sec.19.503(a)(2) because it is not required by federal regulations and "has a substantive cost to the program." Another commenter asked whether social workers who were grandfathered at the bachelor's level in 1985 would be excluded from working in nursing facilities by this change. RESPONSE: DHS acknowledges that this change is not a federal requirement; however, DHS believes that the size of a nursing facility should not determine the level of qualifications of its employees. The change will not require any additional hours of social services in smaller facilities. It will require, however, that a social worker in a nursing facility of 120 beds or less meet the same qualifications as a social worker in a facility of over 120 beds. Analysis of the cost reports for nursing facilities with fiscal years ending after October 1, 1991, indicates that facilities with 120 beds or less were paying social workers an average of $12.35 per hour. The January 1992 Hospital Employees Salary Survey indicates that the hospitals were paying an average starting wage of $10 per hour for social workers with bachelor's degrees. The change in rules to require nursing facilities with 120 beds or less to employ qualified social workers, as defined in sec.19.503(b) of this title (relating to Social Services General Requirements), should have no cost impact on these facilities since they already are paying competitive social worker wages. Section 19.503(a)(2) is being adopted with a change in response to the second commenter to allow social workers grandfathered at the bachelor's level to continue to provide social services in nursing facilities. COMMENT: One commenter objected to the second sentence in sec.19.504(b) as being nebulous and unenforceable. RESPONSE: In response to this comment, DHS is adopting the second sentence of the subsection with changes to read "If indicated by the Resident Assessment Instrument (RAI) and/or the resident's need, an in-depth social service assessment is required." The repeal is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. 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 29, 1993. TRD-9320956 Nancy Murphy Section Manager Texas Department of Human Services Effective date: May 15, 1993 Proposal publication date: December 22, 1992 For further information, please call: (512) 450-3765 The new section is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. sec.19.217. Directives and Durable Powers of Attorney for Health Care. (a) Competent adults may issue advance directives in accordance with applicable laws. (b) The nursing facility must maintain policies and procedures regarding the following rules with respect to all adult individuals receiving services provided by the facility. (1) All individuals must be provided with the following written information: (A) the individual's rights under Texas law (whether statutory or as recognized by the courts of the state) to make decisions concerning medical care, including the right to accept or refuse medical or surgical treatment and the right to formulate advance directives; and (B) the nursing facility's policies respecting the implementation of such rights. (2) The nursing facility must document in the resident's clinical record whether or not the individual has executed an advance directive. (3) The nursing facility must not condition the provision of care or otherwise discriminate against an individual based on whether or not the individual has executed an advance directive. (4) The facility must ensure compliance with the requirements of Texas law, whether statutory or as recognized by the courts of Texas, respecting advance directives. (5) The facility must provide, individually or with others, for education for staff and the community on issues concerning advance directives. For the community, this may include, but is not limited to, newsletters, articles in the newspaper, local news reports, or commercials. For educating staff, this may include, but is not limited to, in-service programs. (6) The facility must provide the attending physician with any information relating to a known existing Directive to Physicians and/or Living Will or Durable Power of Attorney for Health Care, and assist with coordinating physicians' orders with any resident directive. (7) When an individual is in a comatose or otherwise incapacitated state, and therefore is unable to receive information or articulate whether he has executed an advance directive, the family, surrogate, or other concerned person must receive the information concerning advance directives. The facility must provide this information to the resident once he is no longer incapacitated. (8) When the resident or a relative, surrogate, or other concerned or related individual presents the facility with a copy of the individual's advance directive, the facility must comply with the advance directive including recognition of a durable power of attorney for health care, to the extent allowed under state law. If no one comes forward with a previously executed advance directive and the resident is incapacitated or otherwise unable to receive information or articulate whether he has executed an advance directive, the facility must note that the individual was not able to receive information and was unable to communicate whether an advance directive existed. 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 29, 1993. TRD-9320957 Nancy Murphy Section Manager Texas Department of Human Services Effective date: May 15, 1993 Proposal publication date: December 22, 1992 For further information, please call: (512) 450-3765 Subchapter F. Quality of Life 40 TAC sec.sec.19.502-19.504 The new and amended sections are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. sec.19.503. Social Services General Requirements. (a) The facility must provide medically-related social services to attain the highest practicable physical, mental or psychosocial well-being of each resident. See also sec.19.701 of this title (relating to Quality of Care) for information concerning psychosocial functioning. (1) (No change.) (2) A facility of 120 beds or less must employ or contract with a qualified social worker (or in lieu thereof, a social worker who is certified by DHS as prescribed by the Human Resources Code, Chapter 50, sec.50.016(a), and who meets the requirements of subsection (b)(2) of this section) to provide social services a sufficient amount of time to meet the needs of the residents. (b) (No change.) sec.19.504. Social Services Process. (a) The facility must ensure that psychosocial assessment and care planning are completed and reviewed or updated as provided in sec.19.601 and sec.19.602 of this title (relating to Resident Assessment and Comprehensive Care Plans). (b) Psychosocial assessment, intervention, and care planning require the appropriate participation of social work staff, according to the needs and condition of the resident. If indicated by the Resident Assessment Instrument (RAI) and/or the resident's need, an in- depth social services assessment is required. The relevant needs of each resident must be identified and addressed by the direct provision of services or by arranging access to services. 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 29, 1993. TRD-9320958 Nancy Murphy Section Manager Texas Department of Human Services Effective date: May 15, 1993 Proposal publication date: December 22, 1992 For further information, please call: (512) 450-3765 40 TAC sec.19.504 The repeal is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. 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 29, 1993. TRD-9320959 Nancy Murphy Section Manager Texas Department of Human Services Effective date: May 15, 1993 Proposal publication date: December 22, 1992 For further information, please call: (512) 450-3765 Subchapter T. Administration 40 TAC sec.sec.19.1911, 19.1912, 19.1923 The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. 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 29, 1993. TRD-9320964 Nancy Murphy Section Manager Texas Department of Human Services Effective date: May 15, 1993 Proposal publication date: December 22, 1992 For further information, please call: (512) 450-3765 Chapter 27. Intermediate Care Facilities for the Mentally Retarded (ICFs-MR) Subchapter F. Personal Finances and Funds 40 TAC sec.sec.27.601, 27.603, 27.605 The Texas Department of Human Services (DHS) adopts amendments to sec.sec.27.601, 27.603, and 27.605, concerning personal funds, expenditures of personal funds, and protection of funds, in its Intermediate Care Facilities for the Mentally Retarded (ICFs-MR) rule chapter. The amendments to sec.27.601 and sec.27.605 are adopted with changes to the proposed text as published in the November 24, 1992, issue of the Texas Register (17 TexReg 8228). The amendment to sec.27.603 is adopted without changes and will not be republished. The justification for the amendments is to clarify the documentation process required when a client chooses to spend personal funds for a specific type of item the facility is required to furnish; to clarify requirements related to the disclosure of service charges and account balances in facility-managed trust funds; and to allow facilities to establish a budgeted amount of money that can be given an individual based upon his ability to handle money. The amendments will function by improving protection, management, and accounting of the personal funds of individuals served in ICF-MR facilities. During the public comment period, DHS received comments from Advocacy, Incorporated; the Association for Retarded Citizens, Texas; the Austin State School; and the Lufkin State School. A summary of the comments and DHS's responses follows. COMMENT: One commenter objected to the amendments as being too restrictive, stating that they would limit a client's control over personal funds and would limit a client's choice purchasing desired items. RESPONSE: DHS is adopting sec.27.601(g)(3) with changes to clarify that these requirements apply only to facility-managed trust fund accounts. The client or guardian must give the facility written permission to manage their personal funds, and this authorization may be withdrawn at anytime. The facility must document the client's cognitive ability to make an informed choice regarding the management of personal funds. Additionally, the facility must document the client's request for each purchase of an alternate type or brand of a personal needs item that is normally provided by the facility. DHS does not consider the amendments as restricting a client's access to his funds. DHS proposed the amendments to protect clients from exploitation. COMMENT: One commenter expressed concern regarding the requirement that the guardian must approve every expenditure from the client's trust fund. The commenter suggested that the rules allow the interdisciplinary team to determine an amount of money that the client can spend without guardian oversight. RESPONSE: The guardian is responsible to the court to account for the income and expenses of the ward, and the guardian must approve disposition of the individual's funds. The rules do not prevent a guardian from giving written consent for the expenditure of a fixed amount by the individual. COMMENT: Several commenters expressed concern about the amount of money that can be spent from the facility-managed trust fund account without requiring receipts to verify the expenditures. The current amount is $1.00. The commenters suggested that this be increased to $5.00. RESPONSE: DHS is adopting sec.27.605(d)(5) with a change to increase the amount that can be withdrawn from the facility-managed account without receipts. DHS has increased the amount to $3.00 not to exceed $12 per month. Facilities must have receipts to verify expenditures that exceed $12 per month, unless the individual has submitted a written request for the withdrawal or the interdisciplinary team has set a budgeted amount as a part of the individual's active treatment program. The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. sec.27.601. Personal Funds. (a)-(f) (No change.) (g) If an individual makes an informed choice to use a specific type or brand of a personal needs item instead of the item that the facility furnishes under the provisions of subsection (f) of this section, the individual may use his personal funds to purchase the item, provided that at the time the purchase is made the conditions listed in paragraphs (1)-(3) of this subsection are met. Each personal needs item that an individual purchases is reserved for that individual's sole use, regardless of how the individual makes the purchase. The facility must ensure that each such item is labeled inconspicuously with the individual's name. However, the facility is not responsible for labeling personal needs items that have been brought into the facility without being reported to the management. If the individual has a legal guardian, the guardian must authorize the purchase for the individual. (1) The individual must be at least 18 years of age and must not have been adjudicated as incompetent. (2) The facility interdisciplinary team has determined through a formal assessment process the degree to which an individual is capable of making financial decisions, including the amount of money that the individual can handle responsibly. (3) The facility has documented: (A) that the individual has the cognitive ability to make an informed choice concerning the management of personal funds; (B) for each purchase of an alternate type or brand of a personal needs item, the specific type or brand and that the individual made an informed choice and requested the alternate type or brand; and (C) the authorization by the individual and/or guardian for the facility to manage the individual's personal funds, as described in sec.27.605(b)(3)(D) of this title (relating to Protection of Funds). (h)-(i) (No change.) sec.27.605. Protection of Funds. (a) The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Receipt-A cash register tape or seller's sales statement (other than a canceled check) which shows the following: (A) the individual's name; (B)-(E) (No change.) (F) the individual's signature or witnessed mark. (2) Witness-A third party who is present at a financial transaction and who attests to its having taken place. No person who is responsible for client trust funds or who supervises anyone responsible for such funds may act as witness to a financial transaction that includes an individual's personal funds. (3) Trust fund accounts-All accounts in the facility's control or safekeeping that contain the personal funds of individuals. This definition includes an individual's personal banking account if the facility's staff or consultants in any way help the individual to use it. (4) Written request-A request for a specific amount of cash that is written and signed legibly by the individual, guardian, or responsible party. Such a request must be initiated by the individual, not by facility staff, and must be dated. Personal checks may be considered written requests for cash if they are written and signed by the individual. Dually signed checks do not meet this criteria. (b) At the time of admission, the facility must provide to each individual, the individual's guardian, and/or other legally responsible parties a written statement that meets the following specifications: (1)-(2) (No change.) (3) The statement explains the individual's right to decide how the individual's personal funds are to be handled. The explanation must include the options described in subparagraphs (A)-(D) of this paragraph, and the facility must document which options the individual, the legal guardian, or the legally responsible party selects. The facility must hold, safeguard, and account for the individual's personal funds upon receipt of the written authorization of the individual, the guardian, or other legally responsible party. (A) The individual may receive, retain, and manage personal funds himself or have a legal guardian receive, retain, and manage such funds on the individual's behalf. (B) The individual or the guardian may have the Social Security Administration appoint a representative payee for receipt of the individual's federal benefits, if any. (C) The individual or the guardian may designate, in writing, another person to manage the individual's personal funds (except for the individual's federal benefits when a representative payee has been appointed). (D) The individual may decide to allow the facility to hold, safeguard, and account for the individual's personal funds, and, if he chooses this option, the individual may elect to have his funds kept in a separate account or may elect to have his funds pooled with those of other individuals residing in the facility. (4)-(5) (No change.) (6) The statement declares that the facility is required to notify the Texas Department of Human Services' (DHS's) regional Medicaid eligibility worker if the individual: (A)-(B) (No change.) (C) has no responsible party to manage the individual's personal funds on the individual's behalf. (7) The statement declares that the facility will make available a complete accounting of facility-managed accounts upon the request of the individual, legal guardian, or other legally authorized individual, within 72 hours of receiving the request. (c) The facility must provide updated lists of services and charges to the individual; guardian; and/or other legally responsible party, when applicable; and to responsible family members whenever there is a change in either services or charges during the individual's stay or upon the request of the individual, guardian, or family member. (d) The facility must maintain a separate, current, written record of all financial transactions involving an individual's personal funds held in the facility's trust. The facility must keep this record according to the generally accepted accounting principles of the American Institute of Certified Public Accountants. At a minimum, the record must include the following information: (1)-(4) (No change.) (5) the date and amount of each deposit and withdrawal, the name of the person accepting the withdrawn funds, and the balance after each transaction. Except as noted in this paragraph, the record must also include a written receipt for the expenditure of each withdrawal. This receipt must be signed by the individual and/or a witness. A witnessed receipt must show the witness's relationship to the individual. A written receipt is not required in any of the following circumstances: (A) a written request for a specific amount to be withdrawn is submitted by the individual, by the individual's guardian or by another responsible party, or by a person who has the client's written authorization and is not employed by the facility; (B) the withdrawn funds are used to make purchases from vending machines; (C) the expenditure is $3.00 or less, limited to four withdrawals per month not to exceed $3.00 each (the total allowable withdrawals without receipts may not exceed $12 per month); or (D) the amount does not exceed a specific budget amount set by the facility interdisciplinary team, provided that: (i) the individual has been formally assessed in the area of money management; and (ii) it has been determined through formal assessment that the individual possesses the skills necessary to handle the sum of money independently; and (iii) the facility interdisciplinary team, based on the formal assessment described in clauses (i) and (ii) of this subparagraph, has set a specific budget amount to be distributed to the individual on a weekly or monthly basis. (e)-(l) (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 30, 1993. TRD-9321060 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: May 15, 1993 Proposal publication date: November 24, 1992 For further information, please call: (512) 450-3765 Chapter 29. Purchased Health Services Subchapter K. Definitions 40 TAC sec.29.1001 The Texas Department of Human Services (DHS) adopts amendments to sec.sec.29.1001, 29.2103, and 29.2501-29.2503 concerning general definitions for purchased health services, reimbursement of certified registered nurse anesthetists, benefits and limitations, conditions for participation, and reimbursement of advanced nurse practitioners, without changes to the proposed text as published in the January 8, 1993, issue of the Texas Register (18 TexReg 157). The justification for the amendments is to allow for greater access to primary health care services for Medicaid recipients as provided by advanced nurse practitioners. The amendments will function by allowing DHS to reimburse all categories of advanced nurse practitioners and adjust the reimbursement rate for advanced nurse practitioners from 70% to 85% of the rate paid to physicians for the same services provided under Texas Medicaid reimbursement methodology. During the 30-day public comment period, comments favoring all or part of the proposal were received from: Texas Nurses Association, Legal Counsel; Texas Nurse Practitioners, President; Coalition for Nurses in Advanced Practice, Chair; Children's Defense Fund-Texas, Director; Texas Family Planning Association; Center for Rural Health Initiatives, Executive Director; Texas Medical Association, Chairman, Council on Socioeconomics; The University of Texas M.D. Anderson Cancer Center, Associate Director of Anesthesiology Services; North Texas Community Clinics, Administrative Director and staff; Harris County Hospital District, Chief Executive Officer; Baylor College of Medicine, Director of Maternal Fetal Medicine; Baylor College of Medicine, Director of Midwifery Section; Planned Parenthood Center of El Paso, Executive Director; Planned Parenthood of San Antonio and South Central Texas, Executive Director; Planned Parenthood Center of West Texas, Inc., Executive Director; Texas Association of Nurse Anesthetists, Inc., President; Rio Grande Anesthesia Associates; Rehabilitative Care Systems of America, Executive Vice President; and 40 individual practitioners. Comments from the individual practitioners were supportive. However, several practitioners suggested that increasing the rate to 85% is not adequate. The department does not recommend that the rate be increased above 85% of the physician rate at this time. The Texas Medical Association expressed the following concerns and recommendations. The department's responses have been coordinated with the Health and Human Services Commission. COMMENT: The commenter recommended that the department carefully review the Board of Nurse Examiners for the State of Texas Rules and Regulations to determine whether an advanced nurse practitioner can provide the services for which the proposed rules provide payment. RESPONSE: The department does not define scope of practice. Coordination with the Board of Nurse Examiners for the State of Texas, the state regulatory agency, has determined that the proposed rules do not suggest or support practice outside of one's scope of practice as defined and determined by the board. COMMENT: The commenter questioned whether advanced nurse practitioners can utilize Physicians' Current Procedural Terminology codes, as currently defined, for completing claims for billing. It was suggested that determining the level of evaluation and management codes to be used on a claim form requires medical decision making. RESPONSE: To expedite claims processing and payment as well as eliminate the paper billing of professional claims, enrolled physicians and other providers are encouraged to use Physicians' Current Procedural Terminology listings of descriptive terms and identifying codes for reporting. The purpose of the terminology is to provide a uniform language that can accurately describe services and provide an effective means for reliable nationwide communication among physicians, patients, and third parties since 1966. Revisions are prepared by physicians with contributions from third-party payors and governmental agencies. In conjunction with the Physician Payment Advisory Committee (PPAC), the department developed the Texas Medicaid Reimbursement Methodology (TMRM) to be effective for dates of service on or after April 1, 1992. Providers were informed in a Texas Medicaid Special Bulletin, dated March 1992, that fees would apply when making payment for services whether they are provided by a physician or a nonphysician, e.g., independently practicing physical therapists, certified registered nurse anesthetists, optometrists, dentists, podiatrists, chiropractors, and nurse practitioners. The CPT code selected to report the contact depends on the extent of history and physical examination and the complexity of the medical decision making involved. The National Heritage Insurance Company (NHIC) began processing claims with dates of service on or after April 1, 1992, using the new CPT Evaluation and Management Codes. The department has determined that although the CPT coding system is based on the physician's medical practice model, it has been long recognized as the best uniform billing format to promote efficiency and reduce the paperwork burden of billing by physicians and other practitioners to third-party payors, such as Medicaid and Medicare. It should be noted that for coding diagnoses on Medicaid claims, the department uses the uniform diagnostic coding system, International Classification of Disease. 9th Revision, Clinical Modification (ICD-9-CM). This diagnostic coding system is required by the Health Care Financing Administration (HCFA). COMMENT: The commenter recommended that the proposed rules include language requiring a documented arrangement with a physician for referral or handling medical diagnoses and prescribing authority, as a condition of participation. It was mentioned that the definition of professional nursing does not include the word "diagnosis," comparing this definition to the practice of medicine definition. RESPONSE: The proposed rules address the role and scope of practice of advanced nurse practitioners as defined by the Board of Nurse Examiners for the State of Texas, Rules and Regulations Relating to Professional Nurse Education, Licensure, and Practice, sec.221.1, which expands the definition of professional nurse to include "...who is prepared for advanced nursing practice by virtue of knowledge and skills obtained through a post-basic or advanced educational program of study acceptable to the board. The advanced nurse practitioner is prepared to practice in an expanded role to provide health care to individuals, families, and/or groups...". Section 221.8 of the Board of Nurse Examiners rules and regulations defines functions included in the advanced practice area of the advanced nurse practitioner appropriate to post-basic educational preparation. COMMENT: The commenter expressed concern regarding the nurse practitioners' authority to prescribe medications. RESPONSE: The department would not expect the advanced nurse practitioner to go beyond their scope of practice and authority as determined by the state's regulatory boards for medicine or nursing practice. Rule 222 of the Board of Nurse Examiners for the State of Texas defines "Carrying out a prescription drug order." COMMENT: The commenter expressed that the major concern relates to increased payment of 85% of the physician rate, costing an additional $2 million plus per year, with no assurance of increased access and no determination that the payment is in any way cost-based. RESPONSE: The department has determined that it is appropriate to expand the provider base as allowed by HCFA to include all categories of advanced nurse practitioners to help ensure access to reasonable and appropriate primary health care services to Medicaid recipients. Entry into the health care system at an earlier time (such as school-based clinics; early prenatal care; Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) screening; chronic and/or long-term care situations) could easily offset the increase in expenditures that might occur with this limited number of practitioners. COMMENT: The commenter suggested that increased reimbursement to advanced nurse practitioners sends an inappropriate and discouraging message to primary care physicians currently serving Medicaid recipients and to those physicians in training for primary care specialties. RESPONSE: The department does not see this as a discouraging message or threat to other types of practitioners, given the number of Medicaid recipients in need of access to primary health care services. COMMENT: The commenter recommended that the department not go forward with adoption of this rule until it can be determined that there is no other alternative for providing increased access to primary care. It was suggested that the attorney general issue an opinion on whether Medicaid funds can be expended for direct payments to nurse practitioners regarding the issue of ability to diagnose, prescribe, and treat patients; and the capability of advanced nurse practitioners to properly complete a valid claim for submission to Medicaid. RESPONSE: The department has determined that it is appropriate to expand the provider base to include services provided by advanced nurse practitioners within their scope of practice as defined by the Board of Nurse Examiners for the State of Texas to help ensure access to health care services for Medicaid recipients. HCFA has determined that Medicaid payment can be made directly to advanced nurse practitioners for their services to Medicaid recipients and the established claims-filing guidelines are appropriate for this provider type. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. 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 30, 1993. TRD-9321061 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: May 15, 1993 Proposal publication date: November 24, 1992 For further information, please call: (512) 450-3765 Subchapter V. Certified Registered Nurse Anesthetists' Services 40 TAC sec.29.2103 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. 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 30, 1993. TRD-9321062 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: May 1, 1993 Proposal publication date: January 8, 1993 For further information, please call: (512) 450-3765 Subchapter Z. Certified Advanced Nurse Practitioner Services 40 TAC sec.sec.29.2501-29.2503 The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. 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 30, 1993. TRD-9321063 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: May 1, 1993 Proposal publication date: January 8, 1993 For further information, please call: (512) 450-3765 TITLE 43. TRANSPORTATION Part I. Texas Department of Transportation Chapter 23. Division of Travel and Information Subchapter A. General Provisions 43 TAC sec.23.1, sec.23.2 The Texas Department of Transportation adopts new sec.23.1 and sec.23.2, concerning purpose and definitions. Section 23.2 is adopted with changes to the proposed text as published in the October 9, 1992, issue of the Texas Register (17 TexReg 7051). Section 23.1 is adopted without changes and will not be republished. Texas Civil Statutes, Article 6144e, empower the department, for the purpose of dissemination of information relative to highway construction, repair, maintenance, and upkeep, and for the purpose of advertising the highways of this state and attracting traffic thereto, to compile and publish, for free distribution, such pamphlets, bulletins, and documents as deemed necessary and expedient for informational and publicity purposes concerning the highways of the state. Article 6144e further empowers the department to publish a map showing thereon the highways of the state and the towns, cities, and other places of interest served and reached by the highways. New Subchapter A, General Provisions contains two new sections. Section 23. 1, Purpose, describes the purpose of the chapter and describes the responsibilities of the division of travel and information. Section 23.2, Definitions, provides definitions of terms used in the chapter. In accordance with Texas Civil Statutes, Article 6252-13a, a public hearing was held on October 29, 1992, to receive public input on the proposed new sections and also on proposed new sec.sec.23.10-23.12. No comments were received on sec.23.1 and sec.23.2. Section 23.2 defines travel literature to include "maps, pamphlets, brochures, documents, guidebooks, bulletins or other printed materials." In order to clarify the original intent and to prevent any misinterpretations, this definition is revised to explicitly exclude Texas Highways magazine. The new sections are adopted under Texas Civil Statutes, Articles 6666 and 6144e, which provide the Texas Transportation Commission with the authority to promulgate rules and regulations for the conduct of the work of the Texas Department of Transportation, and to compile and publish pamphlets, bulletins, and documents necessary for informational and publicity purposes concerning the highways of the state. sec.23.2. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Commission-The Texas Transportation Commission. Department-The Texas Department of Transportation. Director-The director of the division of travel and information. Division-The division of travel and information of the Texas Department of Transportation. Travel literature -Maps, pamphlets, brochures, documents, guidebooks, bulletins, or other printed materials and electronic media, except Texas Highways magazine, that are designed to inform the public, stimulate travel to and within the State of Texas, and publicize grounds, scenic places, historical facts, or other items of interest and value to the traveling public. 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 31, 1993. TRD-9321034 Diane L. Northam Legal Administrative Assistant Texas Department of Transportation Effective date: April 21, 1993 Proposal publication date: October 9, 1992 For further information, please call: (512) 463-8630 Subchapter B. Travel Information 43 TAC sec.sec.23.10-23.12 The Texas Department of Transportation adopts new sec. sec.23.10-23.12, concerning travel literature, infoBords, and the Texas Official Highway Travel Map. Section 23.10 is adopted with changes to the proposed text as published in the October 9, 1992, issue of the Texas Register (17 TexReg 7051). Section 23.11 and sec.23.12 are adopted without changes and will not be republished. Texas Civil Statutes, Article 6144e, empower the department, for the purpose of dissemination of information relative to highway construction, repair, maintenance, and upkeep, and for the purpose of advertising the highways of this state and attracting traffic thereto, to compile and publish such pamphlets, bulletins, and documents as deemed necessary and expedient for informational and publicity purposes concerning the highways of the state. The statute mandates that literature published under Article 6144e be distributed free of charge. Article 6144e further empowers the department to publish a map showing thereon the highways of the state and the towns, cities, and other places of interest served and reached by the highways. Senate Bill 797, 72nd Legislature, 1991, amended Article 6144e to authorize the department to contract with private entities for the production, marketing, and distribution of travel materials, and provides that such contracts may include cooperative strategies considered by the Department to be cost-beneficial, and further provides for the acceptance of paid advertising in travel materials if the quality and quantity of the travel materials are maintained. New Subchapter B, Travel Information, contains three new sections. Section 23.10, Travel Literature, establishes policies and procedures: governing the selection of subject matter to be included in department travel literature; providing for equitable free distribution of travel literature while maximizing the resources of the department available to advertise the highways of the state and to promote travel to and within the state; governing the acceptance of advertising in travel literature, including bidding and contract procedures; and governing cooperative contracts with commercial entities for the production, marketing, and distribution of department travel literature. Section 23.11, InfoBords, establishes policies and procedures relating to the design, placement, content, and development of travel scene poster panels, referred to as InfoBords, in comfort station highway rest areas. Section 23.12, Texas Official Highway Travel Map , establishes policies and procedures relating to the content of the Texas Official Highway Travel Map . In accordance with Texas Civil Statutes, Article 6252-13a, a public hearing was held on October 29, 1992, to receive public input on the proposed new sections. An individual representing the City of Fort Stockton spoke in favor of the proposed rules, provided literature is distributed free of charge to local tourism promotion groups for their redistribution to visitors. Many written comments were received after the hearing. Responses to all comments are summarized as follows. Proposed sec.23.2 defines travel literature to include "maps, pamphlets, brochures, documents, guidebooks, bulletins or other printed materials." In order to clarify the original intent and to prevent any misinterpretations, this definition is revised to explicitly exclude Texas Highways magazine. Many comments were received concerning sec.23.10(c), which provides for distribution of travel literature. A representative suggested that unlimited quantities would be appropriate for members of the legislature and other elected state officials. Keep Texas Beautiful, Inc. also asked that distribution of "Don't Mess With Texas" bumper stickers and litter bags not be limited. In Keep Texas Beautiful's opinion, this must be done to continue the effective work of the antilitter program. Many entities requested that local chambers of commerce and visitor centers be allowed to receive free multiple quantities of department travel literature for distribution to the visitors those offices serve. These entities include the Coastal Bend Regional Tourism Council, the Kleberg County Convention and Visitors Bureau, the Gateway Visitors Center in Galveston, the Corpus Christi Area Convention and Visitors Bureau, the Port Aransas Area Convention and Visitors Bureau, the Conroe Convention and Visitors Bureau, the Arlington Convention and Visitors Bureau, Fisherman's Wharf in Port Aransas, and the following chambers of commerce: Angelina County, Big Spring Area, Huntsville/Walker County, Aransas Pass, Portland, Sinton, Uvalde, and Jasper. The purpose of the proposed rules is to ensure that department travel literature is placed in the hands of citizens, visitors, and potential visitors to furnish aid and assistance to the traveling public and stimulate travel to and within Texas. The funds and resources appropriated by the department cannot meet the demands of all of those who want travel literature, and therefore, the department must set practical limitations. The proposed rules were, therefore, designed and intended to provide for equitable distribution of travel literature, within those limitations, to meet as nearly as possible the varying needs of the traveling public. They also allow for the department to meet expanded needs if those cost limitations are resolved through contribution or reimbursement by those seeking excess numbers of publications. Keep Texas Beautiful raises the issue of free distribution of antilitter materials, i.e. litter bags and bumper stickers. The department goes to great lengths to have these materials used as automobile litter bags and bumper stickers displayed on vehicles to promote the antilitter message, "Don't Mess with Texas." This group has obtained materials previously and uses the material in a variety of promotional ways, i.e. meeting stuffer bags, party favors, and one community used them to cover parking meters. The department has limited funds and resources, and this is especially true in regards to materials being used by others for purposes other than travel or travel promotion. Reimbursement of the department's costs is, therefore, appropriate for multiple quantities. Section 23.10(c) also provides for certain exceptions to the limitation of one copy per individual. One of the exceptions authorizes the department to "provide multiple quantities of travel literature to the Texas Department of Commerce, the Texas Education Agency, local governmental entities involved in tourism, and other state and federal agencies, on such written terms and conditions as may be mutually agreed upon." The previously mentioned visitors bureaus and chambers of commerce asked to be included in this definition, especially if they are under contract with a local government and the contract is funded with local hotel/motel tax revenues. Difficulties in verification and administrative problems in utilizing funding source as eligibility criteria would be substantial and are unnecessary. The proposed rules authorize the department to contract with local governments for the provision of multiple quantities, thus private entities can meet their needs for travel literature through their local government with whom they can contract. Section 23.10(d), as proposed, provided for advertising in department travel literature. The department received various comments concerning this subsection. As a result of comments and after further review, the department is withdrawing the proposed subsection and revising the proposed text for proposal at a later date. The new sections are adopted under Texas Civil Statutes, Articles 6666 and 6144e, which provide the Texas Transportation Commission with the authority to promulgate rules and regulations for the conduct of the work of the Texas Department of Transportation, and to compile and publish pamphlets, bulletins, and documents necessary for informational and publicity purposes concerning the highways of the state. sec.23.10. Travel Literature. (a) Purpose. The Texas Department of Transportation, pursuant to Texas Civil Statutes, Articles 4413(33) and 6144e, publishes travel literature for free distribution to the traveling public. This section sets forth department policies and procedures relating to the production, development, printing, advertising content, and distribution of that literature. (b) Subject matter. (1) The director, or the director's designee, may select subject matter concerning geographic locations, events, and other items or points of interest to the general traveling public for inclusion in department travel literature provided that: (A) the subject matter is regularly accessible (open) to the general public; and (B) the subject matter is not a routine commercial service, including, but not limited to: (i) car rentals; (ii) hospitals or medical facilities; (iii) retail stores or shopping centers; or (iv) commercial facilities such as theaters, bowling alleys, and gyms. (2) The department may consider for inclusion in travel literature, subject matter submitted by a person or organization, with complete information to the division prior to the publishing deadline announced for each specific travel literature publication. (c) Distribution. (1) Policy. This subsection prescribes the policies and procedures of the department relating to the distribution and dissemination of travel literature to: (A) provide for equitable free distribution, within budgetary constraints, of available travel literature; and (B) maximize the resources of the department available to advertise the highways of the state and to promote travel to and within the state. (2) Single copies. A single copy of a publication may be distributed free of charge to each individual requesting a publication. (3) Multiple copies or bulk quantities. (A) Except as provided in paragraph (4) of this subsection, the department may distribute multiple copies or bulk quantities of a publication to an individual or organization free of charge, provided that the recipient certifies in writing, in a form prescribed by the department, that all copies of publications will be redistributed to the public or end user free of charge. (B) The maximum number of copies that the department may provide per fiscal year for each individual requesting a publication in accordance with subparagraph (A) of this paragraph is: (i) 400 current state "image" folders; (ii) 25 Texas Official Highway Travel Maps; (iii) six Texas State Travel Guides; (iv) 25 other travel literature publications; (v) 100 "Don't Mess with Texas" litter bags; and (vi) 100 "Don't Mess with Texas" bumper stickers. (4) Exceptions. The department may provide: (A) free of charge, a maximum of 100 Texas Official Highway Travel Maps , Texas State Travel Guides, and other travel literature publications per year to each elected state and federal official; and (B) multiple quantities of travel literature to the tourism division of the Texas Department of Commerce, the Texas Education Agency, local governmental entities involved in tourism, and other state and federal agencies, on such written terms and conditions as may be mutually agreed upon. (5) Reimbursement. The department may provide quantities exceeding the maximum authorized under paragraphs (3)(B) or (4)(A) of this subsection if the recipient reimburses the department for its costs to print the additional quantities and satisfies the requirements of paragraph (3)(A) of this subsection. (d) Commercial cooperation. The department may, consistent with Texas Civil Statutes, Articles 601b and 601g, and Texas Constitution, Article XVI, sec.21, enter into cooperative contracts with commercial entities for production, marketing, and distribution of department travel literature to achieve: (1) greater volume; (2) reduced cost to the department; (3) higher quality; (4) wider circulation; and (5) other considerations that will achieve more effective or more economical production and distribution of travel literature than could be attained by departmental efforts alone. 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 31, 1993. TRD-9321035 Diane L. Northam Legal Administrative Assistant Texas Department of Transportation Effective date: April 21, 1993 Proposal publication date: October 9, 1992 For further information, please call: (512) 463-8630