Proposed Sections 
 Before an agency may permanently adopt a new or amended section, or repeal an 
existing section, a proposal detailing the action must be published in the Texas 
Register at least 30 days before any action may be taken. The 30-day time period 
gives interested persons an opportunity to review and make oral or written 
comments on the section. Also, in the case of substantive sections, a public 
hearing must be granted if requested by at least 25 persons, a governmental 
subdivision or agency, or an association having at least 25 members. 
 Symbology in proposed amendments. New language added to an existing section is 
indicated by the use of bold text. [Brackets] indicate deletion of existing 
material within a section. 
 
   
  TITLE 16. ECONOMIC REGULATION 
 Part II. Public Utility Commission of Texas 
  Chapter 22. Practice and Procedure 
  
  Subchapter O. Rulemaking 
 
  16 TAC sec.sec.22.281-22.284 
 
  The Public Utility Commission of Texas proposes new sec. s22.281-22.284, 
concerning rulemaking proceedings before the Public Utility Commission. The new 
sections establish the requirements for petitions for rulemakings; provide for 
public comment on petitions for rulemaking and other proposed rulemaking 
proceedings at the commission; establish a schedule for written comments, reply 
comments, workshops and public hearings; prohibit communications with 
commissioners about a proposed rule after the filing of staff recommendations; 
provide for emergency rulemaking proceedings; and allow the use of informal 
information gathering in rulemaking proceedings. The new sections constitute a 
major revision to the current rules of practice and procedure concerning 
rulemaking, and, if adopted, would replace existing rules governing rulemaking 
proceedings. 
 Patrick J. Sullivan, assistant general counsel, has determined that for the 
first five-year period the sections are in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the rule. 
 Mr. Sullivan also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be greater procedural consistency among rulemaking 
proceedings, additional opportunity for participation at all aspects of most 
rulemaking proceedings and provision of guidance for persons who participate in 
rulemaking proceedings at the Public Utility Commission. There will be no effect 
on small businesses as a result of enforcing the sections. 
 Mr. Sullivan also has determined that for each of the first five years the 
sections are in effect, there will be no impact on employment in the 
geographical areas affected by implementing the requirements of the sections. 
 Comments on the proposal (14 copies) may be submitted to John M. Renfrow, 
Secretary of the Commission, 7800 Shoal Creek Boulevard, Austin, Texas 78757, 
within 30 days after publication. Comments should refer to Project Number 11399. 
 The new sections are proposed under Texas Civil Statutes, Article 1446c, 
sec.16, which provide the Public Utility Commission of Texas with the authority 
to make and enforce rules reasonably required in the exercise of its power and 
jurisdiction. 
 
 
  sec.22.281. Initiation of Rulemaking. 
 
  (a) Petition for Rulemaking. Any interested person may petition the commission 
requesting the adoption of a new rule or the amendment of an existing rule. 
 
  (1) The petition shall be in writing and shall include a brief explanation of 
the rule, the reason(s) the new or amended rule should be adopted, the statutory 
authority for such a rule or amendment, and complete proposed text for the rule. 
The proposed text for the rule shall be indicated by striking through the words, 
if any, to be deleted from the current rule and by underlining the words, if 
any, to be added to the current rule. 
   
  (2) The commission may solicit comments on any rulemaking petition by 
publishing notice in the miscellaneous documents section of the Texas 
Register<ol>. The notice shall include a summary of the petition and the name of 
the individual, organization, or entity that submitted the petition. A copy of 
the petition will be available for review and copying in the commission's 
central records. Comments on the petition shall be due two weeks from the date 
of publication of the notice. 
   
  (3) Within 60 days after submission of a petition, the commission either shall 
deny the petition in writing, stating its reasons for the denial, or shall 
initiate rulemaking proceedings. 
     
  (b) Commission Initiated Rulemaking. The commission may initiate rulemaking 
proceedings on its own motion or on the motion of the commission general 
counsel. Nothing in this section shall preclude the commission general counsel 
or commission staff from consideration or development of new rules or amendments 
to existing rules without express direction from the commission. 
 
     
  sec.22.282. Notice and Public Participation in Rulemmaking Procedures. 
 
  (a) Initial Comments. Prior to publishing a proposed rule or initiating a 
major amendment to an existing rule, the commission may solicit comments on the 
need for a rule and potential scope of the rule by publication of a notice of 
rulemaking project in the miscellaneous documents section of the Texas 
Register<ol>. A notice filed pursuant to this section shall contain a brief 
description and statement of the intended objective of the proposed rule and 
indicate if a draft of the proposed rule is available for review by interested 
persons. Unless otherwise prescribed by the commission, any comments concerning 
the rulemaking project shall be due within 30 days from the date of publication 
of the notice. The commission may hold workshops and/or public hearings on the 
rulemaking project at least 45 days but no later than 60 days from the date of 
publication of the notice. The notice of rulemaking project and time period for 
initial comments is not required for emergency rules adopted pursuant to 
sec.22.283 of this title (relating to Emergency Adoption); minor amendments of 
existing rules; or other rulemaking projects for which good cause exists to act 
immediately. 
   
  (b) Notice. After consideration of initial comments or comments on a petition 
for rulemaking, if comments are solicited, the commission may initiate a 
rulemaking project by publishing notice of the proposed rule in accordance with 
APTRA, sec.5. 
   
  (c) Public Comments. Prior to the adoption of any rule, the commission shall 
afford all interested persons reasonable opportunity to submit data, views, or 
arguments in writing. Written comments must be filed within 30 days of the date 
the proposed rule is published in the Texas Register <ol> unless the commission 
establishes a later date for submission of comments. The commission may also 
establish a schedule for reply comments if it determines that additional 
comments would be appropriate or helpful in reaching a decision on the proposed 
rule. 
   
  (d) Public Hearing. If the commission determines from comments received that 
disputes remain as to the effect of the proposed rule or that additional 
information is needed, the commission may schedule workshops or public hearings 
on the proposed rule. In the case of substantive rules, opportunity for public 
hearing shall be granted if requested by at least 25 persons, by a governmental 
subdivision or agency, or by an association having at least 25 members. Any 
workshops and/or public hearings shall be at least 60 days and no later than 90 
days from the date of publication of the proposed rule. 
   
  (e) Staff Recommendation. After reviewing written comments and/or testimony 
presented at a workshop or public hearing, staff shall submit a recommendation 
for commission action on the proposed rule within 120 days after the publication 
of the proposed rule. The staff recommendation shall be filed in central records 
at the same time it is submitted to the commission. Any interested person may 
file written comments in response to the staff recommendation within 15 days 
after the filing of the staff recommendation. Staff's final recommendation shall 
be submitted to the commission and filed in central records at least 10 days 
prior to the date on which the commission is scheduled to consider the matter 
and not later than 150 days after the publication of the proposed rule. 
   
  (f) Contact with Commissioners. After staff submits its final recommendation 
to the commissioners, written or oral communication from staff or an interested 
person to the commissioners concerning the proposed rule is prohibited. However, 
this prohibition does not apply if the communication is requested by a 
commissioner for the purpose of clarifying the position or views of the staff or 
an interested person. 
   
  (g) Final Adoption. During the Final Order Meeting at which the commission 
considers the proposed rule for final action, the commission shall allow 
interested persons to present oral comments in response to the staff's final 
recommendation. Following consideration of comments from staff and interested 
persons, the commission will issue an order adopting, adopting as amended, or 
withdrawing the rule within six months after the date of publication of the 
proposed rule or the rule is automatically withdrawn. 
 
     
  sec.22.283. Emergency Adoption. <ol> Notwithstanding any other provision of 
these rules, if the commission finds that an imminent peril to the public 
health, safety, or welfare or a requirement of state or federal law requires 
adoption of a rule on fewer than 30 days notice and states in writing its 
reasons for that finding, it may proceed without prior notice or hearing or on 
any abbreviated notice and hearing that it finds practicable to adopt an 
emergency rule. The commission shall set forth the requisite finding in the 
preamble to the rule. An emergency rule adopted under the provisions of this 
section, and the commission's written reasons for the adoption, shall be filed 
in the office of the secretary of state for publication in the Texas 
Register<ol>. All of the requirements of APTRA, sec.5(d) apply to this section. 
 
   
  sec.22.284. Informal Information Gathering. 
 
  (a) The commission, the general counsel, and the commission staff may use 
informal conferences and consultations as a means of obtaining the viewpoints 
and advice of interested persons concerning a contemplated rulemaking. 
   
  (b) The commission may create committees of employees, non-employees, or both 
to advise it with respect to any contemplated rulemaking or other issues of 
interest to the commission, utilities, ratepayers, or other members of the 
public. Powers of these committees are advisory only. 
 
  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 April 29, 1993. 
 TRD-9322308 
  John M. Renfrow 
 Secretary of the Commission 
 Public Utility Commission of Texas 
    Earliest possible date of adoption: June 7, 1993 
 For further information, please call: (512) 458-0100 
         
               Chapter 23. Substantive Rules 
  
  Certification 
 
  16 TAC sec.23.34 
 
  The Public Utility Commission of Texas proposes new sec.23.34, concerning 
certification of electric utilities' least cost planning processes or least cost 
plans. This new rule would permit utilities to apply for bonus allowances 
related to renewable energy and conservation programs, under the Clean Air Act 
Amendments of 1990. 
 Title IV of the Clean Air Act Amendments of 1990 established a new regulatory 
scheme for reducing the emissions of sulfur-dioxide from electric utilities. 
Sulfur-dioxide (SO [sub]2) is believed to be one of the causes of acid rain, and 
the new Federal legislation creates a nationwide limit on SO [sub]2 emissions. 
Under this new scheme of regulation, a utility will be permitted to emit SO 
[sub]2 from a powerplant only if it holds an allowance for each ton of 
emissions. Utilities will be granted a number of allowances, in accordance with 
the terms of the Act, and utilities that need additional allowances can buy them 
from other utilities. The buying, selling, or trading of allowances is intended 
to achieve the reductions in emissions required by the Act at the least cost to 
society. 
 The Act also requires the Environmental Protection Agency to issue up to 
300,000 bonus allowances as an incentive to utilities to provide service to 
their customers through conservation and renewable energy. These are means of 
meeting customers' needs for electricity that do not involve SO [sub]2 
emissions. Utilities may apply to the EPA for bonus allowances related to their 
conservation and renewable energy measures, and one of the criteria for granting 
these allowances is that the utility has adopted a least cost planning process 
or least cost plan that is consistent with the Act and the EPA's regulations. 
Under the EPA regulations, the utility must obtain the certification of the 
State regulatory agency that its least cost planning process or least cost plan 
is consistent with the EPA requirements, in order to be granted bonus 
allowances. 
 Jess K. Totten, assistant general counsel, has determined that for the first 
five-year period the rule is in effect there will be no fiscal implications for 
state or local government as a result of enforcing or administering the rule. 
 Mr. Totten also has determined that for each year of the first five years the 
rule is in effect the public benefit anticipated as a result of enforcing the 
rule will be that the electric utilities in Texas will have an additional 
incentive to provide electric service by conservation and renewable energy. If 
utilities respond to this incentive and adopt new conservation and renewable 
energy measures, the emissions of SO [sub]2 should be lower than if they provide 
service with the existing mix of resources. The economic cost to utilities 
required to comply with the proposed rule is expected to be minimal. Utilities 
are not required to apply for this certification. Presumably, utilities will 
apply for the certification if they believe that the value of any bonus 
allowances they may obtain is greater than the administrative costs of pursuing 
the certification at the commission and the application for the allowances at 
the Environmental Protection Agency. There will be no effect on small 
businesses. There is no anticipated economic cost to persons who are required to 
comply with the rule as proposed. 
 Mr. Totten has determined that for each of the first five years the rule is in 
effect there will be no impact on employment in the geographical areas affected 
by implementing the requirements of the rule. 
 Comments on the proposal (13 copies) may be submitted to John M. Renfrow, 
Secretary of the Commission, Public Utility Commission of Texas, 7800 Shoal 
Creek Boulevard, Austin, Texas 78757, within 30 days of publication. Comments 
should refer to Project Number 11232. 
 The new section is proposed under Texas Civil Statutes, Article 1446c, 
sec.16(a), which provide the Public Utility Commission of Texas with the 
authority to make and enforce rules reasonably required in the exercise of its 
powers and jurisdiction. 
 
 
  sec.23.34. Optional Approval for Conservation and Renewable Energy Measures. 
 
  (a) Scope and purpose. The purpose of this section is to establish procedures 
for electric utilities to apply for the certification that is necessary in 
connection with an application for bonus allowances under the Clean Air Act, 
sec.404(f) Amendments of 1990 for qualified energy conservation and renewable 
energy measures. This section does not require a utility to adopt such measures 
or apply for bonus allowances for such measures. An electric utility may request 
that the commission certify that the utility's least-cost plan or least-cost 
planning process for meeting the future electrical energy requirements of its 
customers meets the requirements of the regulations of the Environmental 
Protection Agency in Title 40 of the Code of Federal Regulations, Part 73, 
Subpart F, relating to bonus allowances for energy conservation and renewable 
energy measures. 
   
  (b) Definitions. For the purpose of this section, the following term shall 
have the following meaning. 
     
   Least-cost plan or least-cost planning process -Includes a utility's planning 
process, whether referred to as a least-cost planning process, integrated 
resource planning process, or resource planning process, by which the utility 
prepares long-range plans to meet the electric service requirements of its 
customers, or a plan that results from such a planning process. 
 
  (c) Criteria for granting certification. A utility may apply for a 
certification from the commission that the utility's least-cost plan or least-
cost planning process meets the requirements of the regulations of the 
Environmental Protection Agency in 40 Code of Federal Regulations, Part 40, 
Subpart F. Such certification may be based on the least-cost plan or the least-
cost planning process described by the utility in a load and resource forecast 
filing, an application for a notice of intent to build a new generating plant, 
an application for amendment of the utility's certificate of convenience and 
necessity for a new generating plant, or any other commission proceeding in 
which the commission makes findings concerning the adequacy of the plan or 
planning process. The commission shall issue such a certification if the 
utility's plan or planning process: 
 
  (1) provides an opportunity for public participation; 
   
  (2) evaluates the full range of resources in order to meet expected future 
demand at lowest system cost; 
   
  (3) treats demand- and supply-side resources on a consistent and integrated 
basis; 
   
  (4) takes into account necessary features for system operation such as 
diversity, reliability, dispatchability, and other factors of risk; and 
   
  (5) is being implemented to the maximum extent practicable. 
     
  (d) Additional criteria. A utility's planning process may take into account 
other factors, in addition to the factors specified in subsection (c) of this 
section, including environmental and social costs and benefits. The public 
participation requirement in subsection (c) of this section may be met by the 
opportunity for public participation in a commission proceeding. 
   
  (e) Notice and docketing. An applicant under this section shall provide notice 
of the application by direct notice to parties that participated in its most 
recent major rate case, parties that participated in its most recent application 
for a notice of intent to build a new generating plant or application for 
amendment of the utility's certificate of convenience and necessity for a new 
generating plant, and the Office of Public Utility Counsel. The application 
shall be docketed if any party requests to intervene or if the commission's 
staff recommends that the application be disapproved. 
   
  (f) Delegation of authority to issue order. In cases in which the application 
is not docketed, the presiding examiner is delegated the authority to issue an 
order on the application. In his discretion, the examiner may issue an order 
without holding a hearing. The examiner shall provide a copy of the order to the 
commissioners, and at the request of a majority of the commission, the matter 
shall be considered at the next open meeting of the commission at which notice 
of the commission's consideration of the matter may be provided. If, within 20 
days of the date of the issuance of the order, the commission has not scheduled 
the application to be considered at an open meeting, the examiner's order shall 
be a final order of the commission. If the commission schedules the matter to be 
considered at an open meeting, the commission shall treat the examiner's order 
as a proposed order and may approve the order, vacate the order and remand the 
matter to the hearings examiner for additional proceedings, or modify the order. 
   
  (g) Examiner's report and proposed order. If an application is docketed, the 
presiding examiner shall issue a proposed order for the consideration of the 
commission, in accordance with  s21.141 of this title (relating to Examiner's 
Reports and Proposals for Decision). 
   
  (h) Certifying official. If the commission or a presiding examiner approves an 
application under this section, the secretary of the commission shall prepare a 
certificate attesting that the utility's least-cost plan or least-cost planning 
process for meeting the future electrical energy requirements of its customers 
meets the requirements of the regulations of the Environmental Protection Agency 
in Title 40 of the Code of Federal Regulations, Part 73, Subpart F. 
 
  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 April 30, 1993. 
 TRD-9322373 
  John Renfrow 
 Secretary of the Commission 
 Public Utility Commission of Texas 
    Earliest possible date of adoption: June 7, 1993 
 For further information, please call: (512) 458-0100 
         
                   
  TITLE 19. EDUCATION 
 Part I. Texas Higher Education Coordinating Board 
  Chapter 5. Program Development 
  
  Subchapter S. Transfer of Lower Division Course Credit 
 
  19 TAC sec.5.391 
 
  The Texas Higher Education Coordinating Board proposes an amendment to 
sec.5.391, concerning transfer of lower division course credit (Requirements and 
Limitations). This is a technical amendment changing the word "and" to 
"including those." This amendment was inadvertently omitted from the final 
adoption in January 1992 of rules enhancing the transferability of credit from 
community colleges to universities by requiring universities to identify 
comparable courses in its catalog. 
 Bill Sanford, assistant commissioner for universities and health affairs, has 
determined that for the first five-year period the rule is in effect there will 
be no fiscal implications for state or local government as a result of enforcing 
or administering the rule. 
 Mr. Sanford also has determined that for each year of the first five years the 
rule is in effect the public benefit anticipated as a result of enforcing the 
rule will not be applicable. There will be no effect on small businesses. There 
is no anticipated economic cost to persons who are required to comply with the 
rule as proposed. 
 Kenneth H. Ashworth, Commissioner of Higher Education, Texas Higher Education 
Coordinating Board, P.O. Box 12788, Austin, Texas 78711. 
 The amendment is proposed under the Texas Education Code, sec.61.051(g) and 
sec.61.078(e), Texas Civil Statutes, which provides the Texas Higher Education 
Coordinating Board with the authority to adopt rules regarding transfer to 
lower-division course credit. 
 
 
  sec.5.391. Requirements and Limitations. 
 
  (a) (No change.) 
   
  (b) Each university must identify at least 45 semester credit hours of 
academic courses that are substantially equivalent to courses listed in the 
"Community College General Academic Course Guide Manual" <nl>including those 
<ol> [and] that fulfill the lower-division portion of the institution's Core 
Curriculum. 
   
  (c)-(f) (No change.) 
 
  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 April 23, 1993. 
 TRD-9322230 
  James McWhorter 
 Assistant Commissioner for Administration 
 Texas Higher Education Coordinating Board 
    Earliest possible date of adoption: June 7, 1993 
 For further information, please call: (512) 483-6160 
         
                   
  TITLE 25. HEALTH SERVICES 
 Part I. Texas Department of Health 
  Chapter 73. Laboratories 
  
  Fees for Drinking Water Systems 
 
  25 TAC sec.73.41 
 
  The Texas Department of Health (department) proposes an amendment to 
sec.73.41, concerning fees for services for drinking water systems. The 
amendment will permit the department to administer a certification program for 
environmental laboratories in order to perform drinking water analyses under the 
federal Safe Drinking Water Act (Act) and the primary drinking water regulations 
promulgated thereunder as found in Title 40, Code of Federal Regulation, 
sec.141. 
 The United States Environmental Protection Agency (EPA) is authorized by the 
Act to provide for the analysis of potable water in all states by certified 
laboratories only. The mechanism for achieving the ends mandated in the Act is 
for EPA to certify a principal laboratory in each state and require that 
laboratory to perform all testing on drinking water itself or else to certify 
other laboratories for that purpose. The department laboratory is the principal 
laboratory in Texas. Until now, only the department's laboratory has performed 
chemical analyses. Selected public laboratories, such as local public health 
department laboratories and laboratories in water treatment plants operated by 
local governments, have been certified to perform microbiological analyses; this 
testing was decentralized due to the time-sensitive nature of microbiological 
samples. 
 The amendment establishes a program by which all laboratories, public, 
industrial, and independent, may perform drinking water analyses for compliance 
with the Act. A large and complicated state program is avoided by creating an 
administrative function with a small clerical staff and limited decision-making 
role for the director of the department's laboratory. Certification will be 
based on accreditation of any interested laboratory by one of a number of 
nationally recognized accrediting agencies approved by the department. Applying 
laboratories must obtain accreditation at their own expense and pay a nominal 
administrative fee for the department to certify them. The department will weigh 
the results of onsite inspections and outside performance evaluations that are 
conducted as part of the accrediting action to decide on certification. 
 James W. Drake, Chief of Staff Services for Disease Prevention Associateship, 
has determined that for the first five year period the section as proposed will 
be in effect, there will be fiscal implications as a result of administering the 
section as proposed. The additional cost to the state government is estimated to 
be $50 per laboratory certified annually, or up to $30,000. The estimated 
increase in revenue will be up to $30,000, recovered in fees for certification. 
There is no impact on local governments, which will have the option to receive 
testing from the state laboratory as now at published rates or from independent 
laboratories if lower bids can be obtained. 
 Mr. Drake also has determined that for each year of the first five years the 
section as proposed will bein effect the public benefit anticipated will be the 
continued analysis of potable water to satisfy the Act and the added benefit of 
privatization of the service. Independent Texas-based laboratories, gaining 
certification in this manner, will be able to compete commercially in other 
states and offer the advantage of competitive bidding to water systems within 
the state. There may be an additional cost to small or large laboratory 
businesses that voluntarily seek accreditation/certification at approximately 
$300 annually in order to be permitted to bid on analytical work under the Act. 
There will be no cost to individuals and no impact on local employment. 
 Comments may be submitted to Dr. Charles E. Sweet, Chief, Bureau of 
Laboratories, Texas Department of Health, 1100 West 49th Street, Austin, Texas 
78756-3194, (512) 458-7318. Comments will be accepted for 30 days after 
publication of the proposed change in the Texas Register. In addition, a public 
hearing on the proposed new section will be held at 1:00 p.m. on Wednesday, May 
12, 1993, in the auditorium, Texas Department of Health, 1100 West 49th Street, 
Austin. 
 The new section is proposed under the Health and Safety Code, sec.12.031 and 
sec.12.032, which provides the Board of Health (board) with the authority to 
adopt rules concerning fees for public health services; 40 Code of Federal 
Regulations, sec.141.28, which allows the Texas Department of Health to certify 
other laboratories in Texas; and sec.12.001, which provides the board with 
authority to adopt rules to implement every duty imposedby law on the board, the 
department and the Commissioner of Health. 
 
 
  sec.73.41. Fees for Services for Drinking Water Systems. 
 
  (a)-(c)  (No change.) 
   
  <nl>(d) Services concerning certification of microbiological and chemical 
testing laboratories. 
 
  <nl>(1)  Definitions. 
 
  <nl>(A) Accreditation-Recognition by an approved accrediting agency that a 
laboratory has met the minimum standards related to performance evaluation, 
employee credentials, onsite inspection of operations, and methodology. 
   
  <nl>(B) Certification-Official and legal approval granted by the Texas 
Department of Health (department) to a laboratory, permitting analysis of 
drinking water samples in accordance with the Safe Drinking Water Act (Act) 
based on the accreditation process or based on identical steps taken by the 
certifying agency itself. 
     
  <nl>(2)  Application. 
 
  <nl>(A) Accreditation. 
 
  <nl>(i) <nl>An applicant laboratory must submit an application for 
accreditatin directly to a department-approved accrediting agency. The 
application form will be provided by the accrediting agency. A list of approved 
accrediting agencies is available from the department. 
   
  <nl>(ii) <nl>Payment of the required fee for accreditation, performance 
evaluation samples, and for onsite inspections will be as specified by the 
accrediting agency. 
   
  <nl>(iii)<nl>   <nl>A laboratory may apply for a single or any combination of 
categories for which to be accredited from among the following: chemistry-
routine inorganics, chemistry-nitrate and nitrite,chemistry-metals, chemistry-
lead and copper, chemistry-trihalomethanes, chemistry-volatile organics, 
chemistry-insecticides and herbicides, chemistry-carbamate insecticides, 
chemistry-EDB and DBCP, chemistry-syntheticorganics, chemistry-endothal, 
chemistry-glyphosate, chemistry-diquat, chemistry-radiochemicals, chemistry-
asbestos, chemistry-dioxin, and/or microbiology. 
     
  <nl>(B)  Certification. 
 
  <nl>(i) <nl>An applicant laboratory must submit an application for 
certification directly to the department on a form specified by the department; 
and must be accompanied by evidence of accreditation by a department-approved 
accrediting agency. 
   
  <nl>(ii)<nl>   <nl>Payment of the public health service fee for certification 
will be upon billing by the department for the recovery of actual costs of 
conducting the certification program. 
   
  <nl>(iii) <nl>Payment may be by check or money order made payable to the Texas 
Department of Health. 
   
  <nl>(iv)  A laboratory may apply for certification in a single or any 
combination of categories from among the following: chemistry-routine 
inorganics, chemistry-nitrate and nitrite, chemistry-metals, chemistry-lead and 
copper, chemistry-trihalomethanes, chemistry-volatile organics, chemistry-
insecticidesand herbicides, chemistry-carbamate insecticides, chemistry-EDB and 
DBCP, chemistry-synthetic organics,chemistry-endothal, chemistry-glyphosate, 
chemistry-diquat, chemistry-radiochemicals, chemistry-asbestos,chemistry-dioxin, 
and/or microbiology. 
       
  <nl>(3)  Standards. 
 
  <nl>(A) The minimum standards for accreditation and certification are as set 
out in the United States Environmental Protection Agency's publication titled 
"Manual for the Certificaton of Laboratories Analyzing Drinking Water" dated 
April 1990. The department adopts this manual by reference. This manual is 
available for review during normal business hours at the department's Bureau of 
Laboratories, 1100 West 49th Street, Austin, Texas. 
   
  <nl>(B) Each applicant laboratory will be evaluated, at a minimum, on the 
following factors: credentials and experience of staff; quality assurance plan; 
manuals of procedures; performance on evaluation unknowns; equipment; 
calibrations and standards; methodology; facilities; sample acceptance policies; 
sampletracking; record keeping; reporting; and results interpretation. 
     
  <nl>(4) Inspections. The department's laboratory may conduct inspections of 
certified laboratories to ascertain the continuing adherence to minimum 
standards and the effectiveness of the accreditation system. 
   
  <nl>(5) Withdrawal of Certification. 
 
  <nl>(A) A laboratory must meet all minimum standards, pass all performance 
evaluation sets and pass onsite inspections no less frequently than every three 
years to be certified. 
   
  <nl>(B) A laboratory that fails to meet requirements by scoring outside the 
acceptable limits on a set of performance evaluation unknowns as determined by 
the EPA, that has serious deficiencies at the time of an onsite inspection, that 
fails to notify the department within 30 days of major changes which might 
impair analytical capability (personnel, equipment, location), and/or that fails 
to notify the state or public as required by notification regulations may be 
placed on provisionally certified status. 
   
  <nl>(C) Failure on two consecutive performance evaluation sets or failure to 
correct major deficiencies within 90 days following onsite inspection will 
result in the withdrawal of certification. 
   
  <nl>(D) If decertification is warranted, the affected laboratory will be 
notified in writing and will have the right to an administrative hearing 
conducted by the department if requested in writing within 30 days of receipt of 
the notice of intent to revoke certification. The hearing will be conducted 
according to the Administrative Procedures and Texas Register Act (Texas Civil 
Statutes, Article 6252-13a) and the department's formal hearing procedures in 
Chapter 1 of this title (relating to Texas Board of Health). 
   
  <nl>(E) A laboratory that has been decertified may gain reinstatement after 
six months by submitting an application as required. The laboratory seeking 
reinstatement must additionally show at least one successful participation in an 
EPA performance evaluation set and must have corrected all major deficiencies. 
     
  <nl>(6) Reciprocity. 
 
  <nl>(A)  The department may certify any laboratory from another state that 
possesses certification in that state or from the EPA, if the criteria for 
certification in that state is comparable to the minimum standards set by the 
EPA. 
   
  <nl>(B) A laboratory may be certified by the department for work in Texas even 
if the laboratory's home state has no certification program, if that laboratory 
is accredited by an agency approved by the department and if the standards for 
accreditation are at least as stringent as those for laboratories within the 
state. 
     
  <nl>(7) Reporting. 
 
  <nl>(A)  The jurisdiction and regulation of water quality in public drinking 
water supplies rests with the Texas Water Commission, and that agency makes 
determinations as to the number, type, and frequency of laboratory tests. 
   
  <nl>(B) All test results conducted in accordance with the Act must be reported 
to the Texas Water Commission in the fashion, in the format, and with the 
frequency specified by that agency. 
     
  <nl>(8) Competition. 
 
  <nl>(A) The department's laboratory will avoid unfair competition with the 
certified laboratories by restricting the submissions it will accept on a 
geographical basis. 
   
  <nl>(B) The department's laboratory must continue to analyze drinking water 
samples in keeping with the requirement by the EPA that principal laboratories 
must perform all analyses. 
 
  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 May 3, 1993. 
 TRD-9322399 
  Robert A. MacLean, M.D. 
 Deputy Commissioner 
 Texas Department of Health 
    Proposed date date of adoption: July 24, 1993 
 For further information, please call: (512) 458-7318 
         
                       
  TITLE 28. INSURANCE 
 Part II. Texas Workers' Compensation Commission 
  Chapter 128. Benefits-Calculation of Average Weekly Wage 
  
  28 TAC sec.128.2 
 
  The Texas Workers' Compensation Commission proposes an amendment to sec.128.2, 
concerning Carrier Presumption of Employee's Wage; Employer Wage Statement 
Required. This amendment will require the employer to send a copy of the wage 
statement to the employee or the employee's representative but not to the 
commission unless the commission requests the employer to provide a wage 
statement to the commission. 
 Janet Chamness, chief of budget, has determined that for the first five-year 
period the section is in effect there will be no fiscal implications for state 
or local government as a result of enforcing or administering the section. 
 The amendment will have the same effect on large businesses as on the smallest 
businesses. 
 Ms. Chamness also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be from improved utilization of agency resources and from the 
timely identification and resolution of disputes regarding average weekly wage. 
Enforcing or administering this section will not cost the public any more than 
the current rule does. While it will not cost more, the benefit of timely 
resolution of disputes issues will work to the public good as described in the 
previous paragraph. 
 Written comments on the proposal may be submitted to Ken Forbes, Policy and 
Rules Administrator, Mail Stop #4D, Texas Workers' Compensation Commission, 
Southfield Building, 4000 South IH-35, Austin, Texas 78704-7491. 
 The amendment is proposed under Texas Civil Statutes, Article 8308-2.09(a), 
which authorize the commission to adopt rules necessary to administer the Act 
and Article 8308-4.10(f), which requires employers to file wage statements. 
 
 
  sec.128.2. Carrier Presumption of Employee's Wage; Employer Wage Statement 
Required. 
 
  (a) A carrier shall promptly initiate the payment of income benefits as 
required by the Workers' Compensation Act (Act). To expedite payment, the 
carrier shall presume that the employer's last payment to the employee for 
personal services based on a full week's work (partial work week shall be 
prorated for a full week) accurately reflects the employee's wage until: 
 
  (1) the employer files the wage statement required by subsection (b) of this 
section; or 
   
  (2) the correct wage is determined by other evidence, if the employer does not 
file the wage statement. 
     
  (b) An employer shall file a signed wage statement with the carrier and 
<nl>the injured employee or injured employee's representative <ol> [the 
commission] within 30 days of the date <nl>benefits begin to accrue<ol> [of 
receipt of notice of the injury, but only if the employee is disabled for at 
least eight days.] <nl>and with the commission within seven days of receiving a 
request from the commission.<ol> The wage statement shall be on a form TWCC 3, 
be signed and dated by the person filing the wage statement for the employer, 
and contain the following information: 
 
  (1) the employee's name, address, and social security number; 
   
  (2)  the dates of employee's employment with the employer; 
   
  (3) the date of injury; 
   
  (4) the employee's wage, as defined in sec.128.1 of this title (relating to 
Average Weekly Wage: General Provisions), paid to the employee for the previous 
13 weeks before the date of injury. If the employee was not employed for 13 
continuous weeks before the date of injury, the employer shall identify a 
similar employee performing similar services, as those terms are defined in 
sec.128.3 of this title (relating to Average Weekly Wage Calculation For Full-
Time Employees, and For Temporary Income Benefits For All Employees), and list 
the wages of that similar employee for the 13 weeks prior to the date of the 
injury; 
   
  (5) the employer's name, address, and federal tax identification number; 
   
  (6) a certification that the wage listed includes the fair market value of 
non-pecuniary remuneration not provided after the date of injury, and that the 
statement is complete, accurate, and complies with this rule; and 
   
  (7) an identification of the employee's status as full-time, part-time, or 
seasonal worker, including the number of hours worked during the previous 13 
weeks, and whether the employee was also a student, apprentice or trainee. 
     
  [(c)  An insurance carrier shall provide to the employee or his representative 
a copy of a wage statement within 20 days of receipt.] 
   
  <nl>(c)<ol>[(d)] An employer shall file a subsequent wage statement within 
seven days if any information contained on the previous wage statement changes. 
   
  <nl>(d)<ol>[(e)] A carrier that fails to promptly begin payment of 
compensation may be assessed an administrative penalty under the Act, sec.5.22. 
   
  <nl>(e)<ol>[(f)] An employer that fails to file a complete wage statement as 
required by this rule without good cause may be assessed an administrative 
penalty, not to exceed $500, under the Act, sec.4.10(f). 
 
  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 April 30, 1993. 
 TRD-9322348 
  Susan Cory 
 General Counsel 
 Texas Workers' Compensation Commission 
    Earliest possible date of adoption: June 7, 1993 
 For further information, please call: (512) 440-3592 
         
             Chapter 140. Dispute Resolution/General Provisions 
  
  28 TAC sec.140.3 
 
  The Texas Workers' Compensation Commission proposes an amendment to sec.140.3, 
concerning Expedited Proceedings. This amendment will allow the commissioners to 
specify in rules whether an issue will be subject to expedited dispute 
resolution proceedings. It will also allow flexibility to establish through 
policy expedited processing of issues for which the Act and rules do not require 
expedited proceedings. 
 Janet Chamness, chief of budget, has determined that for the first five-year 
period the section is in effect there will be no fiscal implications for state 
or local government as a result of enforcing or administering the section. 
 The amendment will have the same effect on large businesses as on the smallest 
businesses. 
 Ms. Chamness also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be from the amendment by having disputes resolved in the most 
timely fashion possible. Enforcing or administering this section will not cost 
the public any more than the current rule does. While it will not cost more, the 
benefit of timely resolution of disputed issues will work to the public good as 
described in the previous paragraph. 
 Written comments on the proposal may be submitted to Ken Forbes, Policy and 
Rules Administrator, Mail Stop #4D, Texas Workers' Compensation Commission, 
Southfield Building, 4000 South IH-35, Austin, Texas 78704-7491. 
 The amendment is proposed under Texas Civil Statutes, Article 8308-2.09(a), 
which authorize the commission to adopt rules necessary to administer the Act. 
 
 
  sec.140.3. Expedited Proceedings. 
 
  [(a)] <nl>In addition to expedited proceedings provided by any other 
commission rule, the<ol> [The] commission may provide expedited benefit review 
conferences and benefit contested case hearings for resolution of disputes 
involving compensability, [or] liability for essential medical treatment <nl>, 
or any type of issue as defined by commission policy for which the executive 
director or delegate determines an expedited proceeding will serve the best 
interests of the workers' compensation system or its participants. 
   
  [(b) A dispute involves compensability when the carrier or the employer 
contests the compensability of an injury, as provided by the Act, sec.5.10(4) or 
sec.5.21. 
   
  [(c) A dispute involves liability for essential medical treatment when the 
carrier or the employer refuses to pay for medical treatment on the grounds that 
the injury is not compensable.] 
 
  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 April 30, 1993. 
 TRD-9322347 
  Susan Cory 
 General Counsel 
 Texas Workers' Compensation Commission 
    Earliest possible date of adoption: June 7, 1993 
 For further information, please call: (512) 440-3592 
         
             Chapter 145. Hearings Under the Administrative Procedures and Texas 
Register Act 
  
  28 TAC sec.145.28 
 
  The Texas Workers' Compensation Commission proposes new  s145.28, concerning 
Expenses to be Paid by Petitioner. This rule will allow the commission to charge 
back the costs of duplicating the record of hearings held by the commission 
under the Administrative Procedures and Texas Register Act (APTRA) when one of 
the parties files a petition in district court. APTRA requires that the agency 
produce a certified record of the proceeding for the court. 
 Janet Chamness, chief of budget, has determined that for the first five-year 
period the section is in effect there will be fiscal implications for state or 
local government as a result of enforcement or administration. The effect will 
be that the costs incurred by the commission will be offset by the amount 
recovered from the petitioner. 
 The section will have the same effect on large businesses as on the smallest 
businesses in that the cost of duplicating the record will be based on the 
length of the proceeding and the number of exhibits introduced rather than the 
size of the business that files the petition. 
 Ms. Chamness also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be by the commission offsetting some of the costs of doing 
business. Enforcing or administering this section will not cost the general 
public anything, though it will potentially pass on the costs of using the 
courts to review actions of the commission. Those costs will vary based on the 
length of the proceeding and on the number of pages of exhibits introduced in 
the proceeding. 
 Written comments on the proposal may be submitted to Ken Forbes, Policy and 
Rules Administrator, Mail Stop #4D, Texas Workers' Compensation Commission, 
Southfield Building, 4000 South IH-35, Austin, Texas 78704-7491. 
 The amendment is proposed under Texas Civil Statutes, Article 8308-2.09(a), 
which authorize the commission to adopt rules necessary to administer the Act, 
and Texas Civil Statutes, Article 6252-13a(19)(f), which authorize an agency to 
pass on the costs of duplicating the record for district court. 
 
 
  sec.145.28. Expenses to be Paid by Petitioner. 
 
  (a) Upon receiving a copy of a petition filed in district court which seeks 
judicial review of a final decision in a contested case decided under this 
chapter, the commission shall prepare a certified copy of the entire record of 
the proceeding under review, including a transcript of the hearing audiotape, 
and transmit it to the reviewing court. 
   
  (b) The commission shall assess to the party seeking judicial review, expenses 
incurred by the commission in preparing this copy, including transcription 
costs. Upon request, the commission shall consider the financial ability of the 
party to pay the costs or any other factor which is relevant to a just and 
reasonable assessment of costs. If the party seeking judicial review is an 
injured employee, the commission shall not charge for duplicating the record. 
 
  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 April 30, 1993. 
 TRD-9322346 
  Susan Cory 
 General Counsel 
 Texas Workers' Compensation Commission 
    Earliest possible date of adoption: June 7, 1993 
 For further information, please call: (512) 440-3592 
         
                 
  TITLE 31. NATURAL RESOURCES AND CONSERVATION 
 Part III. Texas Air Control Board 
  Chapter 101. General Rules 
  
  31 TAC sec.sec.101.24, 101.27, 101.28 
 
  The Texas Air Control Board (TACB) proposes amendments to sec.101.24, 
concerning Inspection Fees; sec.101.27, concerning Emissions Fees; and sec.101. 
28, concerning Asbestos Fees. The proposed revisions to sec.101.24 include 
language changes to coincide with sec.101.27 and add to subsections (a) and (b) 
wording to indicate that inspection fees must be paid to any successor of TACB. 
The TACB is scheduled to be merged into a new environmental agency in September 
of 1993, but the name of the new agency is subject to change in the meantime. 
The proposed revisions to sec.101.27 and sec.101.28 involve similar changes and 
also include fee increases for sec.101.27. 
 In sec.101.27(b), the proposed rule identifies the option that companies 
required to submit emissions fees can report either allowable levels or actual 
levels or both. In sec.101.27(c), TACB proposes to set the Emissions Fee rate 
for fiscal year 1994 at $25 per ton, and for fiscal year 1995, at $26 per ton. 
The increase to $26 per ton for fiscal year 1995 is adjusted according to the 
consumer price index. The minimum Emissions Fee is being increased from $25 to 
$26 for fiscal year 1995, for consistency with the new fee rate. TACB must 
demonstrate to the United States Environmental Protection Agency (EPA) that 
adequate funding is provided to implement the requirements of Title V of the 
Federal Clean Air Act (FCAA) Amendments of 1990. EPA is presuming that the 
proposed emissions fee rate is necessary to fund this program. The Title V 
permitting program will go into effect during fiscal year 1994. 
 House Bill Number 1 (General Appropriations Act), Rider 9, 72nd Texas 
Legislature, authorizes TACB to collect fees from contractors performing 
demolition and renovation projects that may involve asbestos to support 
oversight and enforcement activities required under the federal requirements of 
the National Emission Standards for Hazardous Air Pollutants. The 73rd Texas 
Legislature may write the 1994-1995 Appropriations Bill using the term 
"owner/operator" as defined in 40 Code of Federal Regulations 61, Subpart M, 
instead of the term "contractor," to indicate who will be required to pay 
Asbestos Fees. If that change occurs, the term "owner/operator" will replace the 
term "contractor" in sec.101.28 and the last sentence in sec.101.28(a), which 
defines "contractor," definition will be deleted. Some minor wording 
improvements are proposed in sec.101.28(d) and (e). 
 Mr. Lane Hartsock, Deputy Director of Air Quality Planning, has determined that 
for the first five-year period the rules in effect the anticipated fiscal 
implications for state units of government as a result of enforcing and 
administering sec.101.27 will be approximate revenues as follows: fiscal year 
(FY) 1994, $39 million; FY 1995, $40 million; FY 1996, $42 million; FY 1997, $44 
million; and FY-1998, $46 million. This revenue is expected to recover the costs 
of administering the requirements of Title V of the FCAA. The anticipated costs 
to units of government, businesses, and persons will be the increased fee 
amounts as calculated pursuant to the new rates in sec.101.27(c). The proposed 
fee amount for sec.101.27(c) is a minimum of $25 for fiscal year 1994 and $26 
for fiscal year 1995 with no statutory maximum. 
 Mr. Hartsock also has determined that for each year of the first five years the 
rules are in effect the public benefit anticipated as a result of enforcing the 
rules would be to enable TACB and its future successor agency to fund all 
programs associated with the Title V requirements of the FCAA from sources other 
than the state's General Revenue Fund. There will be no effect on small 
businesses. There is no anticipated economic cost to persons who are required to 
comply with the rules as proposed. 
 A public hearing on this proposal will be held on June 1, 1993, at 10:00 a. m. 
in the Auditorium (Room 201S) of the TACB Central Office, Air Quality Planning 
Annex, located at 12118 North IH-35, Park 35 Technology Center, Building A, 
Austin. The hearing is structured for the receipt of oral or written comments by 
interested persons. Interrogation or cross-examination is not permitted; 
however, TACB staff members will be available to discuss the proposal and answer 
questions at 9:30 a.m., prior to the hearing. 
 Written comments not presented at the hearing may be submitted to TACB, 12124 
Park 35 Circle, Austin, Texas 78753 through June 11, 1993. Material received by 
the Regulation Development Division by 4:00 p.m. on that date will be considered 
by the Board prior to any final action on the proposed sections. Copies of the 
proposal are available at the TACB Air Quality Planning Annex, located at 12118 
North IH-35, Park 35 Technology Center, Building A, Austin, and at all TACB 
regional offices. For further information, contact Diane Stallings at (512) 908-
1471. 
 Persons with disabilities who have special communication or other accommodation 
needs who are planning to attend the hearing should contact the agency at (512) 
908-1815. Requests should be made as far in advance as possible. 
 The amendments are proposed under the Texas Clean Air Act (TCAA), sec.382. 017, 
Texas Health and Safety Code (Vernon 1990), which provides TACB with the 
authority to adopt rules consistent with the policy and purposes of the TCAA. 
 
 
  sec.101.24. Inspection Fees. 
 
  (a) Applicability. The owner or operator of each account to which this rule 
applies, as defined in this subsection, shall remit to the Texas Air Control 
Board (TACB) <nl>or any successor or agency successor<ol> an inspection fee each 
fiscal year. A fiscal year is defined as the period from September 1 through 
August 31. An account subject to both an inspection fee and an emissions fee, 
pursuant to sec.101.27 of this title (relating to Emissions Fees), is required 
to pay only the greater of the two fees. For purposes of this section, an 
account shall be defined as all of the facilities located at a property, 
including those that are permitted, non-permitted, exempted, and grandfathered. 
Properties under common ownership, but containing separate operations, or 
managed independently, or carried on the records of this agency under separate 
account numbers, will be charged a separate fee for each such account, even if 
the properties are contiguous or are contiguous except for intervening roads, 
railroads, rights-of-way, waterways, and the like. The inspection fee shall 
apply to each account which contains one or more of the types of plants, 
facilities, and/or processes described in the TACB Inspection Fee Schedule, 
dated August 30, 1991, as filed with the Secretary of State's Office and herein 
adopted by reference. References for the industrial categories used are provided 
in the Standard Industrial Classification (SIC) Manual<ol> (Executive Office of 
the President, Office of Management and Budget, 1987). If more than one SIC 
category can apply to an account, the fee assessed shall be the highest fee 
listed for the applicable classifications in the fee schedule. Provisions of the 
section apply to all accounts, including accounts which have not been assigned 
specific TACB account numbers. The owner or operator of an account subject to an 
inspection fee requirement is responsible for contacting the appropriate TACB 
regional office to obtain an account number. <nl>TACB will not initiate the 
combination or separation of accounts solely for fee assessment purposes. <ol>If 
an account is operated at any time during the fiscal year for which the fee is 
assessed, a full inspection fee is due. In the event that an account is not 
operated for the entire fiscal year for which the fee is assessed, an inspection 
fee is not due, provided TACB is notified in writing that the plant is not and 
will not be in operation during that fiscal year. If an account commences or 
resumes operation later during the fiscal year, a full inspection fee will be 
due prior to commencement or resumption of operations. 
   
  (b) Payment. Fees shall be remitted to the Texas Air Control Board <nl>or any 
successor or agency successor<ol> (Attention: Inspection Fees), 12124 Park 35 
Circle, Austin, Texas 78753, in the form of a check or money order made payable 
to the Texas Air Control Board. A completed fee return form shall accompany fees 
remitted. The fee return form shall include, at least, the company name, 
property address, mailing address, TACB account number, the SIC category on 
which the fee was determined, and the name and telephone number of the person to 
contact in case questions arise regarding the fee payment. 
   
  (c)-(d) (No change.) 
 
     
  sec.101.27. Emissions Fees. 
 
  (a) Applicability. The owner or operator of each account to which this rule 
applies, as defined in this subsection, shall remit to the Texas Air Control 
Board (TACB) <nl>or any successor or agency successor<ol> an emissions fee each 
fiscal year. A fiscal year is defined as the period from September 1 through 
August 31. An account subject to both an emissions fee and an inspection fee, 
pursuant to sec.101.24 of this title (relating to Inspection Fees), is required 
to pay only the greater of the two fees. For purposes of this section, an 
account shall be defined as all of the facilities located at a property 
including those that are permitted, nonpermitted, exempted, and grandfathered. 
Properties under common ownership, but containing separate operations, or 
managed independently, or carried on the records of this agency under separate 
account numbers, will be charged a separate fee for each such account, even if 
the properties are contiguous or are contiguous except for intervening roads, 
railroads, rights-of-way, waterways, and the like. Provisions of the section 
apply to all accounts, including accounts which have not been assigned specific 
TACB account numbers. The owner or operator of an account subject to an 
emissions fee requirement is responsible for contacting the appropriate TACB 
regional office to obtain an account number. TACB will not initiate the 
combination or separation of accounts solely for fee assessment purposes. If an 
account is operated at any time during the fiscal year for which the fee is 
assessed, a full emissions fee is due. In the event that an account is not 
operated for the entire fiscal year for which the fee is assessed, an emissions 
fee is not due, provided TACB is notified in writing that the plant is not and 
will not be in operation during that fiscal year. If an account commences or 
resumes operation later during the fiscal year, a full emissions fee will be due 
prior to commencement or resumption of operations. All regulated air pollutants, 
as defined in subsection (c) of this section, including, but not limited to, 
those emissions from point and fugitive sources during normal operations with 
the exception of (for applicability purposes only) hydrogen, oxygen, carbon 
dioxide, water, nitrogen, methane, and ethane, are used to determine 
applicability of this section. In accordance with rules proposed by the United 
States Environmental Protection Agency (EPA) at 40 Code of Federal Regulations 
(CFR) 70, concerning the use of fugitive emissions in major source 
determinations, fugitive emissions shall be considered toward applicability of 
this section only for those source categories listed at 40 CFR, sec.51.166(b)(1) 
(iii). For purposes of this section, an affected account shall have met one or 
more of the following conditions: 
 
  (1)-(9) (No change.) 
     
  (b)  Payment. Fees shall be remitted to the Texas Air Control Board <nl>or any 
successor or agency successor<ol> (Attention: Emissions Fees), 12124 Park 35 
Circle, Austin, Texas 78753, in the form of a check or money order made payable 
to the Texas Air Control Board. A completed fee return form shall accompany fees 
remitted. The fee return form shall include, at least, the company name, 
property address, mailing address, TACB account number, the allowable levels  
<nl>and/or<ol> [and] actual emissions [(if used)] of all regulated air 
pollutants at the account for the reporting period, and the name and telephone 
number of the person to contact in case questions arise regarding the fee 
payment. 
   
  (c) Basis for Fees. 
 
  (1) The emissions fee shall be based on allowable levels and/or actual 
emissions at the account during the last full calendar year preceding the 
beginning of the fiscal year for which the fee is assessed. The fee applies to 
the tonnage of regulated pollutants at the account, including those emissions 
from point and fugitive sources during normal operations. 
       
  <ol>Although certain fugitive emissions are excluded for applicability 
determination purposes pursuant to subsection (a) of this section, all fugitive 
emissions must be considered for fee calculations after applicability of the fee 
has been established. A maximum of 4,000 tons of each regulated pollutant will 
be used for fee calculations. The fee for each fiscal year is set at the 
following rates: 
 
  [graphic] 
     
  
  <ol>The account shall pay the calculated emissions fee or <nl>the<ol> [a] 
minimum fee [of $25], whichever is greater. 
 
  (2)-(3)  (No change.) 
   
  (d)-(e) (No change.) 
 
     
  sec.101.28. Asbestos Notification Fees. 
 
  (a) Applicability. On or after September 1, 1992, the contractor of a 
demolition or renovation activity shall remit to the Texas Air Control Board 
(TACB) <nl>or any successor or agency successor <ol> a fee that is based upon 
the amount of asbestos subject to the reporting requirements of the National 
Emission Standards for Hazardous Air Pollutants (for Asbestos) promulgated in 
the Code of Federal Regulations (CFR) at 40 CFR 61, Subpart M. For purposes of 
this section, the term "contractor" is the individual or organization 
responsible for the asbestos removal. 
   
  (b) Payment. Within 30 calendar days of the date on the TACB Asbestos Billing 
Invoice, the billed fee(s) which are calculated by the TACB from the 
notification form shall be payable to the Texas Air Control Board <nl>or any 
successor or agency successor<ol> in the form of a check or money order and the 
original TACB Billing Invoice shall be remitted to the Texas Air Control Board 
<nl>or any successor or agency successor<ol> (Attention: Asbestos Fees), 12124 
Park 35 Circle, Austin, Texas 78753. 
   
  (c) (No change.) 
   
  (d) Schedule. A check or money order for the dollar amount of the fee due 
shall be remitted within 30 calendar days of the date on the Asbestos Billing 
Invoice sent by TACB. The following fee schedule shall apply for all 
notification revisions: 
 
  (1) (No change.) 
   
  (2) If a revision is made with an official TACB notification form in which the 
original amount of asbestos reported is less than the actual amount removed, an 
additional fee covering the difference shall be <nl>invoiced<ol> [remitted at 
the same time that renotification is made]. 
   
  (3) If a revision is made with an official TACB notification form in which the 
original amount of asbestos reported remains unchanged, <nl>no additional fee 
will be assessed<ol> [payment is not required when the renotification is made]. 
     
  (e) Nonpayment of Fees. The provisions of this section, as first adopted and 
as amended thereafter, <nl>are and<ol> shall remain in effect for purposes of 
any unpaid <nl>assessments <ol> [assessment], and the fees assessed pursuant to 
such provisions, as adopted or as amended, remain a continuing obligation. 
Failure to remit the full asbestos fee with the original TACB Asbestos Billing 
Invoice shall result in formal enforcement action under the Texas Clean Air Act, 
sec.382.082 or sec.382.088. In addition, sec.382.091(a)(2) provides for criminal 
penalties for those failing to pay fees. 
 
  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 April 28, 1993. 
 TRD-9322316 
  Lane Hartsock 
 Deputy Director, Air Quality Planning 
 Texas Air Control Board 
    Proposed date of adoption: July 16, 1993 
 For further information, please call: (512) 908-1451 
         
             Chapter 103. Procedural Rules 
  
  Adjudicative Hearings 
 
  31 TAC sec.103.46 
 
  The Texas Air Control Board (TACB) proposes an amendment to sec.103.46, 
concerning Prehearing Conference. The proposed changes have been developed in 
response to an initiative by the Hearings Oversight Committee of TACB to improve 
the hearings process. 
 The proposed changes to sec.103.46 require that all parties to the hearing make 
pertinent information available to all other parties at a time and place to be 
determined by the hearing examiner. The current language only requires such 
disclosure of the permit applicant. 
 Mr. Lane Hartsock, Deputy Director of Air Quality Planning, has determined that 
for the first five-year period the rule is in effect there will be no fiscal 
implications for state or local units of government as a result of enforcing or 
administering the rule. 
 Mr. Hartsock also has determined that for each year of the first five years the 
rule is in effect the public benefit anticipated as a result of enforcing the 
rule will be a more equitable and efficient hearing process. There will be no 
significant effect on small businesses. There is no significant economic cost to 
persons who are required to comply with the rule as proposed. 
 A public hearing on this proposal will be held at 2:00 p.m. on June 1, 1993, in 
Room 201S of the TACB Air Quality Planning Annex located at 12118 North IN-35, 
Park 35 Technology Center, Building A, Austin, Texas 78753. The hearing is 
structured for the receipt of oral and written comments by interested persons. 
Interrogation or cross-examination is not permitted; however, the TACB staff 
will discuss the proposal at 1:30 p.m. and will be available to answer 
questions. 
 Written comments not presented at the hearing may be submitted to the TACB 
central office in Austin through June 11, 1993. Material received by the 
Regulation Development Division by 4:00 p.m. on that date will be considered by 
the Board prior to any final action on the proposal. Copies of the proposal are 
available at the Regulation Development Division of the TACB Air Quality 
Planning Annex located at 12118 North IH-35, Park 35 Technology Center, Building 
A, Austin, Texas 78753, and at all TACB Regional offices. For further 
information, contact James Braddock at (512) 908-1835 or Bill Ehret at (512) 
908-1772. 
 Persons with disabilities who have special communication or other accommodation 
needs who are planning to attend the hearing should contact the agency at (512) 
908-1815. Requests should be made as far in advance as possible. 
 The amendment is proposed under the Texas Clean Air Act (TCAA), sec.382.017, 
Texas Health and Safety Code (Vernon 1990), which provides TACB with the 
authority to adopt rules consistent with the policy and purposes of the TCAA. 
 
 
  sec.103.46. Prehearing Conference. 
 
  (a) (No change.) 
   
  (b)  To facilitate transfer of basic information and preparation of the 
parties for the hearing and without precluding further discovery by any of the 
parties, in all contested cases <nl>each party<ol> [the applicant] shall make 
available to <nl>the other<ol> named parties or their representative at a time 
and place to be determined by the hearing examiner: 
 
  (1) copies of the permit application <nl>(applies only to the applicant) <ol>; 
and 
   
  (2) any information which the <nl>party <ol> [applicant] will rely upon in the 
hearing, such as facts or data upon which an expert bases an opinion or 
inference, including, but not limited to the following: 
 
  (A)  any engineering or technical studies performed  <nl>regarding<ol> [in 
support of] the application; 
   
  (B) (No change.) 
   
  (C) any health effects assessment conducted <nl>regarding <ol> [by or for the 
applicant for] the proposed facility; and 
   
  (D) resumes and reports of any experts who will testify for the <nl>party<ol> 
[applicant] in the hearing. 
       
  (c)-(g)  (No change.) 
 
  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 April 29, 1993. 
 TRD-9322317 
  Lane Hartsock 
 Deputy Director, Air Quality Planning 
 Texas Air Control Board 
    Earliest possible date of adoption: June 7, 1993 
 For further information, please call: (512) 908-1451 
         
                   
  TITLE 40. SOCIAL SERVICES AND ASSISTANCE 
 Part I. Texas Department of Human Services 
  Chapter 29. Purchased Health Services 
  
  Subchapter G. Hospital Services 
 
  (Editor's note: The text of the following sections proposed for repeal will 
not be published. The sections may be examined in the offices of the Texas 
Department of Human Services or in the Texas Register office, Room 245, James 
Earl Rudder Building, 1019 Brazos Street, Austin.) 
   
  The Texas Department of Human Services (DHS) proposes the repeal of sec.29. 
609 and sec.29.610, and proposes new  s29.609 and sec.29.610, concerning 
additional reimbursement to disproportionate share hospitals, in its Purchased 
Health Services chapter. 
 New sec.29.609 describes the methodology that DHS will use to identify and 
provide additional reimbursement to hospitals that provide a disproportionate 
share of health care and access to health care to indigent clients. The Indigent 
Health Care and Treatment Act, passed by the 69th Texas Legislature in 1985, 
first apportioned funds to DHS to provide assistance to hospitals providing a 
disproportionate share of inpatient indigent health care. Section 29.609 is the 
basis for identifying eligible hospitals and for distribution of 
disproportionate share funds. 
 New sec.29.610 includes the disproportionate share hospital program for state-
owned teaching hospitals. This program is the same as the current program 
specified in the old sec.29.609(f). The conditions of participation being 
proposed in new sec.29.609 do not apply to this program. 
 Burton F. Raiford, commissioner, has determined that for the first five-year 
period the proposal will be in effect there will be no fiscal implications for 
state or local government as a result of enforcing or administering the 
proposal. 
 Mr. Raiford also has determined that for each year of the first five years the 
proposal is in effect the public benefit anticipated as a result of enforcing 
the proposal will be improved health care and improved access to health care for 
the citizens of Texas. There will be no effect on small businesses. There is no 
anticipated economic cost to persons who are required to comply with the 
proposal. 
 Questions about the content of this proposal may be directed to Henry Welles at 
(512) 450-4046 in DHS's Provider Reimbursement Section. Comments on the proposal 
may be submitted to Nancy Murphy, Policy and Document Support-107, Texas 
Department of Human Services E-503, P.O. Box 149030, Austin, Texas 78714-9030, 
within 30 days of publication in the Texas Register . DHS will hold a public 
hearing on the proposal on Tuesday, May 18, 1993, at 9 a.m. in the John H. 
Winters Building Public Hearing Room, first floor, East Tower, 701 West 51st 
Street, Austin. A copy of this proposal is being sent to each DHS field office 
where it will be available for public review and comment. 
   
  40 TAC sec.29.609, sec.29.610 
 
  The repeals are proposed 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.29.609. Additional Reimbursement to Disproportionate Share Hospitals. 
 
   
  sec.29.610. Designation of Certain Hospitals as Disproportionate Share 
Hospitals. 
 
  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 May 3, 1993. 
 TRD-9322391 
  Nancy Murphy 
 Section Manager, Policy and Document Support 
 Texas Department of Human Services 
    Proposed date of adoption: September 1, 1993 
 For further information, please call: (512) 450-3765 
         
       
  The new sections are proposed 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.29.609. Additional Reimbursement to Disproportionate Share Hospitals. 
 
  (a) Introduction. Hospitals participating in the Texas Medical Assistance 
(Medicaid) program that meet the conditions of participation and that serve a 
disproportionate share of low-income patients are eligible for additional 
reimbursement from the disproportionate share hospital fund. The single state 
agency or its designee establishes each hospital's eligibility for and amount of 
reimbursement as specified in this section. For purposes of Medicaid 
disproportionate share eligibility determination, a multisite hospital is 
considered as one provider unless it has separate Medicare cost reports for each 
site. 
   
  (b) Definitions. For purposes of this section, the following words and terms 
shall have the following meanings, unless the context clearly indicates 
otherwise. 
 
  (1)  Charity care-Care provided to medically or financially indigent 
individuals who have no source of payment, third-party or personal. 
   
  (2)  Charity charges (excluding bad-debt expenses) -Total amount of hospital 
charges for inpatient and outpatient services attributed to charity care in a 
cost reporting period. The total inpatient and outpatient charity charges 
attributable to charity care do not include contractual allowances and discounts 
(other than for indigent patients not eligible for medical assistance under an 
approved Medicaid State Plan); that is, reduction or discounts, in charges given 
to other third-party payers such as, but not limited to, Health Maintenance 
Organizations (HMOs), Medicare, or Blue Cross (according to a survey of 
hospitals by the single state agency or its designee) . The amount of total 
charity charges must be consistent with the amount reported on the Texas 
Department of Health's (TDH's) annual hospital survey. 
   
  (3) Cost-to-charge ratio-A hospital's ratio of overall costs to charges, as 
determined from the Medicare cost report (tentative or final audited cost 
report, if available) submitted for the hospital's fiscal year ending in the 
previous calendar year. 
   
  (4) Financially indigent-Uninsured or underinsured patients accepted for care 
with no obligation or a discounted obligation to pay for services based on the 
hospital's formal eligibility system, which may include income levels and means 
testing (indexed to an accepted standard such as the federal poverty 
guidelines), or other criteria for determining a patient's inability to pay that 
are consistent with the hospital's mission and established policy. 
   
  (5) Gross inpatient revenue-Total annual revenue for inpatient care from all 
sources, as reported in the inpatient column of the item titled "Total Patient 
Revenue" on the "Statement of Patient Revenues and Operating Expenses" worksheet 
of the Medicare cost report (tentative or final audited cost report, if 
available) for the hospital's fiscal year ending in the previous calendar year. 
Gross inpatient revenue excludes revenue related to the professional services of 
hospital-based physicians. 
   
  (6) Hospital eligibility criteria-Financial and other criteria used by the 
hospital to determine if a patient is eligible for charity care. 
   
  (7) Low-income days-Number of days derived by multiplying a hospital's total 
inpatient census days by its low-income utilization rate. 
   
  (8) Low-income utilization rate-The result of the following computation: 
((Title XIX inpatient hospital payments plus total state and local revenue) 
divided by gross inpatient revenue multiplied by cost-to-charge ratio) plus 
((total inpatient charity charges minus total state and local revenue) divided 
by gross inpatient revenue)). 
   
  (9) Medicaid inpatient utilization rate-Title XIX inpatient days divided by 
total inpatient census days. 
   
  (10) Medically indigent-Patients who are responsible for their other living 
expenses but whose medical and hospital bills, after payment by third-party 
payers, where applicable, exceed a specified percentage of the patients' annual 
gross income (catastrophic medical expenses) according to the hospital's 
eligibility system in such instances where payment would require liquidation of 
assets critical to living or earning a living or other criteria for determining 
patient's inability to pay that are consistent with the hospital's mission and 
established policy. 
   
  (11) Medicare inpatient utilization rate-Medicare inpatient days divided by 
total inpatient census days. 
   
  (12) Operating costs-Total operating costs of a hospital during its fiscal 
year ending in the previous calendar year (according to the hospital's Medicare 
cost report). 
   
  (13) Rural area-Area outside a Metropolitan Statistical Area (MSA) or a 
Primary Metropolitan Statistical Area (PMSA). MSA and PMSA are defined by the 
Office of Management and Budget. 
   
  (14) Title XIX inpatient days-Total number of billed Medicaid inpatient days 
based on the latest available state fiscal-year data for patients entitled to 
Medicaid benefits, excluding days for patients entitled to both Medicare and 
Medicaid benefits (according to the single state agency or its designee). 
   
  (15) Title XIX inpatient hospital payments-Total amount of Medicaid funds, 
excluding Medicaid disproportionate share funds, a hospital received for 
admissions during the latest available state fiscal year for inpatient services 
(according to the single state agency or its designee). 
   
  (16) Total inpatient census days-Total number of inpatient hospital days of a 
hospital during its fiscal year ending in the previous calendar year (according 
to a survey of hospitals by the single state agency or its designee and the 
Texas Hospital Association and American Hospital Association). 
   
  (17) Total inpatient charity charges (excluding bad-debt expenses) -Total 
amount of the hospital's charges for inpatient hospital services attributed to 
charity care in a cost-reporting period. The total inpatient charges 
attributable to charity care does not include contractual allowances and 
discounts (other than for indigent patients not eligible for medical assistance 
under an approved Medicaid State Plan); that is, reduction or discounts, in 
charges given to other third-party payers such as, but not limited to, HMOs, 
Medicare, or Blue Cross (according to a survey of hospitals by the single state 
agency or its designee). The amount of total charity charges must be consistent 
with the amount reported on TDH's annual hospital survey. 
   
  (18) Total state and local revenue-Total amount of state and local revenue a 
hospital received for inpatient care, excluding all Medicaid payments, during 
its fiscal year ending in the previous year (according to a survey of hospitals 
by the single state agency or its designee). 
   
  (19) Urban-Area inside an MSA or PMSA. 
   
  (20) Weighted low-income days-Low-income days multiplied by an appropriate 
weighting factor. 
   
  (21) Weighted Medicaid days-Medicaid days multiplied by an appropriate 
weighting factor. 
     
  (c) Conditions of participation. Before the beginning of each state fiscal 
year, which begins September 1, the single state agency or its designee surveys 
Medicaid hospitals to determine which hospitals meet the state's conditions of 
participation. Hospitals must allow state personnel access to the hospital and 
its records to ensure compliance with the conditions of participation. Failure 
to meet all of the conditions of participation results in ineligibility for 
participation in the program. These conditions of participation do not apply to 
state-owned teaching hospitals as specified in sec.29.610 of this title 
(relating to Disproportionate Share Hospital Reimbursement Methodology for 
State-Owned Teaching Hospitals). The conditions of participation are: 
 
  (1) Hospital eligibility criteria for indigent patients needing medical care. 
Each Medicaid hospital must submit to the state Medicaid director its hospital 
eligibility criteria for indigent patients and the procedures for identifying 
those indigent patients eligible for emergency and nonemergency medical care. 
Hospital eligibility criteria address financially indigent people as well as the 
medically indigent and are indexed to the federal poverty guidelines. Hospitals 
must identify the number of patients to whom they provide charity care and must 
make available to state personnel sufficient records to document the amount of 
charity care provided to those patients. A hospital must allow state personnel 
to observe the implementation of its stated charity policy and must permit state 
personnel access to the hospital or its records evidencing charity care. 
Exception: The indigent care criteria of state-owned mental hospitals and state 
chest hospitals are defined by statute and are not indexed to the federal 
poverty guidelines. 
   
  (2) Charity charge requirements. 
 
  (A) In order to receive Medicaid disproportionate share funds in: 
 
  (i) state fiscal year 1995, a hospital's fiscal year 1993 total charity 
charges must be equal to or greater than 10% of its net state fiscal year 1994 
disproportionate share payments; 
   
  (ii) state fiscal year 1996, a hospital's fiscal year 1994 total charity 
charges must be equal to or greater than 15% of its net state fiscal year 1995 
disproportionate share payments; 
   
  (iii) state fiscal year 1997, a hospital's fiscal year 1995 total charity 
charges must be equal to or greater than 20% of its net state fiscal year 1996 
disproportionate share payments; and 
   
  (iv) state fiscal year 1998, a hospital's fiscal year 1996 total charity 
charges must be equal to or greater than 25% of its net state fiscal year 1997 
disproportionate share payments. 
     
  (B) The ratio of total charity charges to net disproportionate share payments 
must be equal to or greater than 25% in subsequent years. Exceptions: urban 
hospitals with combined Medicaid and Medicare inpatient utilization rates equal 
to or greater than 80% are exempt. Rural and children's hospitals with combined 
Medicare and Medicaid inpatient utilization rates equal to or greater than 65% 
are exempt. Any hospital that qualifies for Medicaid disproportionate share 
funds in a state fiscal year, and that did not get Medicaid disproportionate 
share funds in the previous year, is exempt from this specific condition. 
     
  (3) Posting requirements. Each hospital must annually provide assurances to 
the state Medicaid director that it posts policies informing patients and 
prospective patients of its eligibility and charity care. These policies must be 
posted prominently and continuously in common patient entry-points. Hospitals 
must advise all patients of the availability of no-cost medical care and the 
application procedures. The posting must be in English and Spanish. 
   
  (4)  Reporting requirements. Each hospital must report receipt and expenditure 
of Medicaid disproportionate share funds to the Medicaid director at least once 
a year. Each hospital must maintain records for the receipt and expenditure of 
its disproportionate share funds for five years. 
   
  (5)  Community health care assessment. Each hospital must annually furnish to 
the state Medicaid director a copy, developed at the direction of the hospital's 
governing board, of its assessment of the health care needs of its community. 
The assessment must demonstrate how the hospital is using its disproportionate 
share funds to address its community health needs. Exceptions: Texas Department 
of Mental Health and Mental Retardation (TXMHMR) psychiatric hospital and state 
chest hospital expenditures are governed by state statutes. 
   
  (6) Alternative access to primary care. Each hospital must annually report to 
the state Medicaid director the availability of alternative access (other than 
emergency care) to primary care in its community. Hospitals must have plans to 
arrange for nonemergency patients to receive care that is not in their emergency 
rooms, unless they can demonstrate that there is no feasible alternative in the 
community. Hospitals also must report their progress in treating nonemergency 
patients apart from their emergency rooms. Exceptions: the following hospitals 
are exempt from this condition: state-owned psychiatric and chest hospitals; 
psychiatric hospitals licensed by TXMHMR; and these hospitals licensed as 
"special" by TDH, including long-term care hospitals, ventilator hospitals, burn 
institutes, and alcohol-chemical dependency hospitals; rehabilitation hospitals; 
maternity hospitals; college infirmaries; contagious disease hospitals; and 
hospitals for the terminally ill. 
   
  (7) Trauma system. Disproportionate share hospitals must actively participate 
in the development of a regional trauma system, which includes trauma facility 
designation as defined in the state trauma laws (the Health and Safety Code, 
sec. s773.111-773.120) and TDH rules. 
 
  (A)  Hospitals qualifying for the disproportionate share program for the first 
time must meet the regional trauma system development participation requirement 
in the first year of their participation, regional trauma system development 
participation and application for trauma facility designation in the second year 
of their participation, and regional trauma system development participation and 
trauma facility designation in subsequent years of their participation. 
   
  (B) Hospitals can be designated as trauma facilities under four levels that 
range from "basic" (stabilization and transfer of major and severe trauma 
patients) to "comprehensive" (care and management of all trauma patients, plus 
education and research). Hospitals identified as disproportionate share 
hospitals effective September 1, 1993, must be designated as trauma facilities 
or hospitals participating in regional trauma system development by March 1, 
1994. Participation in regional trauma system development and application for 
designation as a trauma facility are required in the second year of 
participation. Participation in regional trauma system development, application 
for trauma facility designation, and designation as a trauma facility are 
required in subsequent years. 
   
  (C) Documentation of regional trauma system development participation is 
periodically provided to the Bureau of Emergency Management (Bureau) by the 
trauma service areas. Beginning January 1, 1994, and before January 1 of each 
subsequent year, the Bureau annually reports hospital participation in regional 
trauma system development, application for trauma facility designation, and 
trauma facility designation status to the state Medicaid director. Exceptions: 
The following hospitals are exempt from the trauma system condition: state-owned 
psychiatric and chest hospitals; psychiatric hospitals licensed by TXMHMR; and 
these hospitals licensed as "special" by TDH, including long-term care 
hospitals, ventilator hospitals, burn institutes, and alcohol-chemical 
dependency hospitals; rehabilitation hospitals; maternity hospitals; college 
infirmaries; contagious disease hospitals; and hospitals for the terminally ill. 
Pediatric and adolescent facilities are exempt from trauma facility designation 
requirements until the time that state law authorizes the designation of 
pediatric and/or adolescent trauma facilities. 
     
  (8) Maintenance of effort. Hospital districts and city/county hospitals with 
greater than 250 licensed beds in the state's largest metropolitan statistical 
areas or primary metropolitan statistical areas are not eligible for 
disproportionate share payments if local revenues are reduced as a result of 
disproportionate share funds received. 
   
  (9) Two-physician requirement. In order to qualify for disproportionate share 
hospital payments, each hospital must have at least two physicians (M.D. or 
D.O.) who have hospital staff privileges and who have agreed to provide 
nonemergency obstetrical services to Medicaid clients. The two-physician 
requirement does not apply to hospitals whose inpatients are predominantly under 
18 years old, as defined by the single state agency or its designee, or that did 
not offer nonemergency obstetrical services as of December 21, 1987. 
     
  (d) Qualifying formulas for determining disproportionate share status. The 
single state agency or its designee identifies the qualifying Medicaid 
disproportionate share providers from among the hospitals that meet the two-
physician requirement and the state's conditions of participation, as specified 
in subsection (c)(1)-(8) of this section, by using the following formulas. 
Children's hospitals that do not otherwise qualify as disproportionate share 
hospitals are deemed disproportionate share hospitals. 
 
  (1) A Medicaid inpatient utilization rate at least one standard deviation 
above the mean Medicaid inpatient utilization rate for all hospitals 
participating in the Medicaid program; 
 
  [graphic] 
   
  (2) For rural hospitals, a Medicaid inpatient utilization rate greater than 
the mean Medicaid inpatient utilization rate for all hospitals participating in 
the Medicaid program; or 
   
  (3) A low-income utilization rate exceeding 25%. For a hospital, the low-
income utilization rate is the sum (expressed as a percentage) of the fractions 
calculated as follows: 
 
  (A) the total Medicaid inpatient payments paid to the hospital, plus the 
amount of revenue received directly from state and local governments, excluding 
all Medicaid payments, in a cost reporting period, divided by the total amount 
of revenues of the hospital for inpatient services (including the amount of 
state and local revenue) in the same cost reporting period multiplied by the 
hospital's cost-to-charge ratio for the same cost-reporting period; 
 
  [graphic] 
   
  (B) the total amount of the hospital's charges for inpatient hospital services 
attributable to charity care in a cost-reporting period, minus the amount of 
revenue for inpatient hospital services received directly from state and local 
governments, excluding all Medicaid payments, in a cost-reporting period, 
divided by the total amount of the hospital's charges for inpatient services in 
the hospital in the same period. The total inpatient charges attributable to 
charity care does not include contractual allowances and discounts (other than 
for indigent patients not eligible for medical assistance under an approved 
Medicaid State Plan); that is, reductions or discounts in charges given to other 
third-party payers such as, but not limited to, HMOs, Medicare, or Blue Cross; 
 
  [graphic] 
     
  (4) Title XIX inpatient-days at least one standard deviation above the mean 
Medicaid inpatient-days for all hospitals participating in the Medicaid program. 
     
  (e) Determining disproportionate share status. To determine Medicaid 
disproportionate share status: 
 
  (1) the single state agency or its designee arrays each hospital's Medicaid 
utilization rate in descending order. The single state agency or its designee 
first selects hospitals whose Medicaid utilization rates are greater than the 
mean plus one standard deviation above the mean Medicaid inpatient utilization 
rate for all hospitals participating in the Medicaid program. The state 
considers these hospitals to be Medicaid disproportionate share hospitals. 
   
  (2) the single state agency or its designee arrays each rural hospital's 
Medicaid utilization rate in descending order. The single state agency or its 
designee then selects rural hospitals whose Medicaid utilization rates are above 
the mean Medicaid utilization rate for all hospitals participating in the 
Medicaid program. These hospitals are considered to be Medicaid disproportionate 
share hospitals. 
   
  (3) the single state agency or its designee then arrays each remaining 
hospital's low-income utilization rate in descending order. The single state 
agency or its designee selects hospitals whose low-income utilization rates are 
greater than 25%. These hospitals are considered to be Medicaid disproportionate 
share hospitals. 
   
  (4) the single state agency or its designee then arrays each remaining 
hospital's total Medicaid inpatient-days in descending order. The single state 
agency or its designee selects hospitals whose total Medicaid inpatient-days are 
at least one standard deviation above the mean Medicaid inpatient utilization 
rate for all hospitals participating in the Medicaid program. These hospitals 
are considered to be Medicaid disproportionate share hospitals. 
     
  (f)  Reimbursing Medicaid disproportionate share hospitals. 
 
  (1) A state-owned chest or mental hospital that meets the requirements for 
disproportionate share status and provides psychiatric care or acute care 
services receives between 50% and 100% of the hospital's total operating costs, 
less Medicaid payments (other than disproportionate share adjustments), less all 
funding from nonstate and nonlocal government sources for services provided in 
the particular hospital's fiscal year. 
   
  (2) For the remaining hospitals, payments are based on both weighted Medicaid 
inpatient-days and weighted low-income days. The single state agency or its 
designee weights each hospital's total Medicaid inpatient-days and low-income 
days by the appropriate weighting factor. Hospital districts and city/county 
hospitals with greater than 250 licensed beds in the state's largest MSAs or 
PMSAs would receive weights based proportionally on the MSA's or PMSA's 
population according to the 1990 census. Children's hospitals also receive 
weights because of the special nature of the services they provide. The Medicaid 
inpatient-days of each hospital is based on the latest available state fiscal 
year data for patients entitled to Medicaid benefits. The available 
disproportionate share fund is divided into two parts. Two-thirds of the 
available fund reimburses each qualifying hospital on a monthly basis by its 
percent of the total Medicaid inpatient-days. One-third of the available fund 
reimburses each qualifying hospital by its percent of the total low-income days. 
Reimbursement for the remaining hospitals is determined monthly as follows: 
 
  (A) The single state agency or its designee determines the average monthly 
number of weighted Medicaid inpatient-days and weighted low-income days of each 
qualifying hospital. 
   
  (B) A qualifying hospital receives a monthly disproportionate share payment 
based on the following formula: 
 
  [graphic] 
       
  (g) Review of agency determination. The single state agency or its designee 
notifies hospitals of their eligibility or ineligibility and the estimated 
amount of payment before the beginning of the state fiscal year. The actual 
amount of payment may vary if a successful review request by one or more 
hospitals necessitates an adjustment in the amount of payments to the other 
hospitals in the program. Hospitals that do not qualify or that believe the 
amount of payment is incorrect may request a review by the single state agency 
or its designee. 
 
  (1) The hospital's written request for a review must be made to the director 
of acute care services and must be received by the director within 10 days after 
the hospital receives notification of its eligibility or ineligibility. The 
hospital's request must contain specific documentation supporting its contention 
that factual or calculation errors were made, which, if corrected, would result 
in the hospital qualifying for payments or receiving payment in a corrected 
amount. 
   
  (2) The review is: 
 
  (A) limited to allegations of factual or calculation errors, 
   
  (B) limited to a review of documentation submitted by the hospital or used by 
the single state agency or its designee in making its original determination; 
and 
   
  (C) not conducted as an adversary hearing. 
     
  (3) The single state agency or its designee conducts the review as quickly as 
possible and makes its decision before the first monthly payment is made for 
that fiscal year. Hospitals that have requested a review are notified of the 
results of the review at the time of the first monthly payment. Any adjustments 
made as a result of these reviews will not exceed the limits of available funds 
for implementing the applicable disproportionate share program. Once the first 
monthly payment is made, no additional review or appeal is available to 
hospitals. 
     
  (h)  Disproportionate share funds held in reserve. 
 
  (1) Hospitals participating in the disproportionate share program are required 
to comply at all times with the conditions of participation specified in 
subsection (c) of this section. If the single state agency or its designee has 
reason to believe that a hospital is not complying with the conditions of 
participation, the single state agency or its designee notifies the hospital of 
possible noncompliance. Upon receipt of the notice of possible noncompliance, 
the hospital has 30 days to demonstrate its compliance with conditions of 
participation. If the hospital fails to demonstrate its compliance within 30 
days, the single state agency or its designee has the authority to hold that 
hospital's disproportionate share payments in reserve until the: 
 
  (A)  hospital can demonstrate its compliance with the conditions of 
participation; 
   
  (B) decision to hold payments in reserve is reviewed and the decision results 
in favor of the hospital; or 
   
  (C) date the last monthly payment in the relevant state fiscal year occurs; 
whichever occurs first. 
     
  (2) If a hospital's disproportionate share payments are being held in reserve 
on the date of the last monthly payment in the state fiscal year, the amount of 
the payments is divided proportionately among the hospitals receiving a last 
monthly payment and is not restored to the hospital. If the hospital 
demonstrates its compliance with the conditions of participation or if the 
hospital receives a favorable review decision, the funds are restored to the 
hospital. 
   
  (3) Hospitals that have had disproportionate share payments held in reserve 
may request a review by the single state agency or its designee. 
 
  (A) The hospital's written request for a review must: 
 
  (i) be made to the director of acute care services; 
   
  (ii) be received by the director within 10 days after the hospital's 
disproportionate share payments are held in reserve; and 
   
  (iii) contain specific documentation supporting its contention that it is in 
compliance with the conditions of participation. 
     
  (B)  The review is: 
 
  (i) limited to allegations of compliance with conditions of participation; 
   
  (ii) limited to a review of documentation submitted by the hospital or used by 
the single state agency or its designee in making its original determination; 
and 
   
  (iii) not conducted as an adversary hearing. 
     
  (C) The single state agency conducts the review as quickly as possible and 
notifies hospitals requesting the review of the results. Once the last monthly 
payment for the relevant state fiscal year is made, no additional review or 
appeal is available to hospitals. 
       
  (i) Provision for reduction in federal disproportionate share cap. If the 
federal government reduces the amount of Medicaid disproportionate share funds 
allotted to Texas, the state must reduce the net amount allotted to each 
disproportionate share hospital during the state fiscal year by the same 
percentage. 
 
     
  sec.29.610. Disproportionate Share Hospital Reimbursement Methodology for 
State-owned Teaching Hospitals. <ol> The Health and Human Services Commission or 
its designee provides additional disproportionate share reimbursement to state-
owned teaching hospitals through a supplemental disproportionate share program. 
A state-owned teaching hospital is a hospital owned and operated by a state 
university or other agency of the state. Additional reimbursement is provided to 
each state-owned teaching hospital on a monthly basis using the following 
formula: 
 
  [graphic] 
     
  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 May 3, 1993. 
 TRD-9322390 
  Nancy Murphy 
 Section Manager, Policy and Document Support 
 Texas Department of Human Services 
    Proposed date of adoption: September 1, 1993 
 For further information, please call: (512) 450-3765 
         
  Texas Department of Insurance Exempt Filing  
  Notification Pursuant to the Insurance Code, Chapter 5, Subchapter L 
 
  (Editor's Note: As required by the Insurance Code, Article 5.96 and 5. 97, the 
Texas Register publishes notice of proposed actions by the Texas Board of 
Insurance. Notice of action proposed under Article 5.96 must be published in the 
Texas Register not later than the 30th day before the board adopts the proposal. 
Notice of action proposed under Article 5.97 must be published in the Texas 
Register not later than the 10th day before the Board of Insurance adopts the 
proposal. The Administrative Procedure and Texas Register Act, Article 6252-13a, 
Texas Civil Statutes, does not apply to board action under Articles 5.96 and 
5.97. 
 The complete text of the proposal summarized here may be examined in the 
offices of the Texas Department of Insurance, 333 Guadalupe Street, Austin, 
Texas 78714-9104.) 
   
  The State Board of Insurance of the Texas Department of Insurance at a public 
hearing under Docket Number 1983 met on April 29, 1993, at 1:30 p.m. in Room 100 
of the Texas Department of Insurance Building, 333 Guadalupe Street in Austin, 
to consider a proposal filed by the staff of the Workers' Compensation Division 
of the Texas Department of Insurance. The staff was proposing several 
recommendations to the workers' compensation classification system as a result 
of a study performed by Dr. Mark Crawshaw, consulting actuary for the firm of 
Wakely and Associates, Atlanta Georgia. The recommendations were proposed in a 
petition (Reference Number W-0393-05), filed by the staff on March 3, 1993. 
 The Board decided to recess this hearing until May 27, 1993, at 9:00 a.m. to 
allow the public additional time to provide comments. 
 According to the staff's petition, the following recommendations are being 
presented to the State Board of Insurance for possible adoption: 
 1. The number of workers' compensation classifications should be substantially 
reduced by consolidating into single classifications the multiple 
classifications that describe similar businesses and for purposes of determining 
classification relativities and experience rating values, by grouping 
classifications with similar claims experience and hazard. 
 2. The classification phraseology used in the Workers' Compensation Manual 
should be updated, modernized and simplified wherever appropriate. In addition, 
definitions should be expanded to include a listing of as many specific types of 
businesses included within a classification as possible. 
 3. The classification system should not at this time be territorially based or 
allow for differences in wage levels by employers. 
 4. The classifications for 8 of the 22 classifications that currently include 
clerical workers should be revised to exclude clerical workers from the basic 
classification wording. 
 5. The classification definitions should be revised so that within a single 
class, drivers are treated uniformly, either as a standard exception or not. 
 6. The three current classifications related to mining should be consolidated 
into a single "a" rated classification. 
 7. The 11 current classifications related to explosive manufacturing should be 
consolidated into two "a" rated classifications. 
 8. The 26 current classifications related to chemical manufacturing should be 
consolidated into nine "a" rated classifications. 
 9. The four current classifications for domestic workers should be consolidated 
into a single "a" rated classification. 
 10. The following five classifications should no longer be "a" rated: Code 
1748-Abrasive Wheel Mfg.; Code 2030 -Beet Sugar Mfg.; Code 3022-Pipe or Tube 
Mfg. NOC; Code 5705-Salvage Operation; Code 7425-Aircraft or Helicopter NOC 
Flying Crew. 
 11. The disease designator "d" should be dropped from all classifications, 
except supplemental disease classifications which should be "a" rated. 
Consideration should be given to establishing additional supplemental disease 
classifications for statistical reporting purposes. 
 A copy of the petition containing the full text of the proposed amendments is 
available for review in the office of the Chief Clerk of the Texas Department of 
Insurance, 333 Guadalupe Street, Austin, Texas 78714-9104. For further 
information or to request copies of the petition, please contact Angie Arizpe 
(512)322-4147, refer to Reference Number W-0393-05. 
 Comments on the proposal must be submitted in writing prior to May 25, 1993, to 
Linda K. Von Quintus-Dorn, Chief Clerk, P.O. Box 149104, MC-113-2A, Austin, 
Texas 78714-9104. An additional copy of the comment should be submitted to 
Melissa Nunnelee, Associate Commissioner Life/Health & Workers' Compensation, 
P.O. Box 149104, MC-107-2A, Austin, Texas 78714-9104. 
 This notification is made pursuant to the Insurance Code, Article 5.96, which 
exempts it from the requirements of the Administrative Procedure and Texas 
Register Act. 
   
  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 April 30, 1993. 
 TRD-9322352 
  Linda K. von Quintus-Dorn 
 Chief Clerk 
 Texas Department of Insurance 
    For further information, please call: (512) 463-6328